THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

James  R»  Hutter 
'U?  Bus,  Adm. 


PLEADING  AND  FORMS 


ADAPTED    TO   THE 


WITH  A   FULL  CITATION  OF  ALL  THE  LATEST  ADJUDICATED 

CASES  IX  INDIANA,  AND  NUMEROUS  AUTHORITIES  UNDER 

THE    PRACTICE    AT   COMMON    LAW  AND   IN    EQUITY, 

AND   UNDER   THE   CODES   OF   OTHER   STATES 


(References  to  the   Revised   Statutes  of  1881) 


BY 

JOHN  D.  WORKS 

HI 


SECOND     EDITION 


VOX..    I 


CINCINNATI 
ROBERT    CLARKE    &    CO 

1887 


Entered  according  to  Act  of  Congress,  in  the  year  1882, 

BY  EGBERT  CLARKE  &  CO. 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE. 


In  the  preparation  of  this  book  I  have  endeavored  to  make 
it  sufficiently  full  in  its  statement  to  render  it  useful  to  the 
younger  members  of  the  profession  who  need  something  more 
than  a  mere  digest  of  decided  cases.  To  those  of  the  profes- 
sion who  care  but  little  for  general  discussion  or  the  reason- 
ing or  opinions  of  the  author,  a  full  citation  of  authorities  will 
be  found  in  the  book,  the  subjects  being  so  classified,  and  in- 
dicated by  head  lines, 'as  to  render  it  one  of  easy  reference, 
and  make  it  a  digest  of  the  decided  cases  as  well  as  a  work  on 
Practice  and  Pleading.  • 

A  very  careful  and  thorough  study  of  the  code,  and  of  the 
decisions  rendered  before  and  after  its  adoption,  has  been 
made,  with  an  earnest  effort  to  arrive  at  its  true  intent  and 
meaning,  as  well  as  the  effect  of  the  adjudicated  cases,  and 
furnish  to  the  profession  a  thorough  and  complete  work  on 
Practice  and  Pleading  in  this  State. 

Without  the  aid  of  a  reliable  digest  this  has  been  a  task  in- 
volving much  labor.  I  found  it  absolutely  necessary,  in  the 
investigation  of  each  subject,  to  examine  and  make  a  digest 
for  my  own  use  of  the  decided  cases  on  that  subject.  This 
required  much  time  and  patience. 

The  work  was  partially  completed  when  the  new  code  was 
enacted,  and  a  considerable  portion  of  the  first  volume  had 
to  be  rewritten. 

Where  changes  have  been  made  by  the  revision  of  the  code, 
they  have  been  carefully  noted.  These  changes  will  be  found 
to  be  numerous  and,  in  some  instances,  important.  The 
change  made  in  the  manner  of  trying  causes^  requiring  that 
all  suits  in  equity  shall  hereafter  be  tried  by  the  court,  is  the 
most  radical.  This  innovation  may  be  found  to  be  beneficial 
in  practice,  but  I  can  not  but  regard  it  as  a  mistake  brought 
about  by  the  necessity  for  limiting  the  number  of  jury  trials. 
The  mistake,  I  think,  was  not  in  limiting  the  number  of 
causes  in  which  a  jury  trial  may  be  demanded,  but  in  making 

(iii) 


IV  PBEFACE. 

the  right  to  depend  upon  a  distinction  between  common-law 
and  equitable  actions. 

It  destroys  the  harmony  of  the  code,  and  makes  it  conflict 
with  itself.  After  the  general  provision  that  there  shall  be 
no  distinction  in  practice  and  pleading,  between  actions  at 
law  and  suits  in  equity,  follows  this  one  making  a  broad  dis- 
tinction between  the  two  in  a  most  important  branch  of  the 
practice. 

The  great  mass  of  decisions  on  Practice  and  Pleading  under 
the  code  in  this  State,  and  the  confusion  that  has  naturally 
resulted  from  the  radical  changes  that  have  been  made  by  the 
code,  and  by  amendments  thereto  since  its  adoption  has,  it  is 
believed,  made  a  thorough  work  of  this  kind  a  necesssity  to 
the  profession.  I  have  made  an  earnest  and  painstaking  ef- 
fort to  supply  this  necessity ;  how  well  I  have  succeeded  must 
be  left  to  the  candid  judgment  of  the  profession  throughout 
the  State. 

Through  the  kindness  of  Hous.  John  H.  Stotsenburg  of 
of  the  Revision  Commission,  and  E.  R.  Hawn,  Secretary  of 
State,  I  have  been  favored  with  advance  sheets  of  the  Re- 
vised Statutes  of  1881,  and  the  references  are  made  thereto  by 
sections. 

In  the  front  of  the  book  will  be  found  a  Table  of  Parallel 
Sections  of  the  old  and  new  codes  as  they  appear  in  the  Re- 
vised Statutes  of  1852  and  1881.  It  is  believed  this  table  will 
be  of  service  to  the  profession,  as  the  decided  cases  down  to 
the  76th  Indiana  Report  contain  references  to  the  old  code,  and 
the  numbers  of  the  sections  have  been  entirely  changed  in 
the  revision. 

J.  D.  W. 

VEVAY,  May,  1882. 


PREFACE    TO    THE    SECOND    EDITION. 


The  forms  contained  in  the  second  volume  of  the  first 
edition  were  not  prepared  by  the  author.  They  did  not  prove 
satisfactory.  This  was  no  doubt  due  in  a  great  measure  to 
the  want  of  space  to  develop  them  properly.  At  the  earnest 
solicitation  of  the  publishers,  the  author  has  prepared  a  third 
volume,  devoted  entirely  to  forms  and  notes.  The  effort  has 
been  made  to  furnish  a  full  and  complete  set  of  forms  relating 
to  the  practice  in  civil  cases.  Following  each  form  proposi- 
tions relating  to  the  subject-matter  to  which  it  relates,  and  as 
to  what  the  particular  form  must  contain,  are  laid  down,  and 
the  authorities  fully  cited,  thus  making  the  volume  a  com- 
plete digest  of  the  cases,  as  well  as  a  book  of  forms. 

In  preparing  these  forms  the  course  of  an  action  is  taken, 
commencing  with  the  complaint  and  ending  with  proceedings 
on  appeal,  including  the  forms  necessary  to  be  used  in  the  re- 
moval of  causes  to  the  United  States  courts.  To  this  is  added 
forms  in  particular  cases,  including  what  are  commonly 
called  special  proceedings. 

In  short  the  attempt  has  been  made  to  furnish  a  form  for 
every  step  to  be  taken  in  the  practice  in  civil  cases. 

Volumes  one  and  two  have  been  carefully  revised  and 
the  authorities  brought  down  to  the  present  time.  This  is 
sometimes  done  by  a  reference  to  volume  three,  where  it  has 
taken  up  the  subject  and  cited  the  preceding  volumes  and 
cases  decided  since,  thus  furnishing  all  of  the  authorities,  in  the 
three  volumes,  without  repetition.  The  chapter  on  judgments, 
which,  in  the  first  edition,  was  in  volume  two,  lias  been  trans- 
ferred to  volume  one.  Some  of  the  chapters  in  volume  two 
have  been  entirely  rewritten  and  enlarged.  The  index  to  the 
first  and  second  volumes  remains  in  the  second,  to  which  has 
been  added  a  full  table  of  cases  of  the  three  volumes. 

Volume  three  has  a  separate  index.  J.  D.  W. 

SAN  DIEGO,  CALIFORNIA,  October,  1886. 

(v) 


CONTENTS  OF  VOL.  I. 


CHAPTER  I. 


COURTS  OF  INDIANA , 

SECTION.  SECTION. 

1.  The  constitution  and  statutes.  3.  Courts  now  existing. 

2.  Criminal  circuit  courts;  act  creating  constitutional. 


CHAPTER  II. 
JURISDICTION 4 


4.  What  is  jurisdiction. 

5.  When  will  be  presumed. 

6.  When  question  of  jurisdiction  may 

be  raised. 

7.  Constitutional  jurisdiction  can  not 

be  taken  away  by  legislature. 


8.  Concurrent  may  be  exercised  by 

court  first  taking  jurisdiction. 

9.  Concurrent  with   courts   of  other 

states. 


CHAPTER  III. 

JURISDICTION  OF  THE  COURTS  OF  INDIANA... 


10.  How  regulated. 

OF   THE   SUPREME    COURT. 

11.  Appellate  jurisdiction. 

CIRCUIT   COURTS. 

12.  General  jurisdiction. 

13.  Is  concurrent  and  exclusive. 

14.  Exclusive  jurisdiction. 

15.  Of  common   pleas   transferred   to 

circuit  court. 

16.  In    counties    having    no   superior 

court. 

17.  Concurrent  jurisdiction. 

18.  Where  subject-matter  is  in  two  or 

more  counties. 

19.  Appellate  jurisdiction. 

20.  From   boards   of  county   commis- 

sioners. 

'21.  From  mayors'  and  city  courts. 

'J2.  From  surveyors  and  awards  of  ar- 
bitrators. 


JUSTICES   OF   THE   PEACE. 

23.  Have  only  statutory  jurisdiction. 

24.  In  misdemeanors. 

25.  In  felonies. 

26.  In  assault  and  battery. 

27.  Territorial  jurisdiction. 

28.  Territorial  civil  jurisdiction. 

29.  Amount. 

30.  How  amount  of  claim  determined. 

31.  Exclusive  jurisdiction. 

MAYORS   OF   CITIES. 

32.  Generally. 

CITY   COURTS. 

33.  Concurrent  jurisdiction. 

COUNTY   COMMISSIONERS. 

34.  Judicial  and  legislative. 

35.  Exclusive  jurisdiction. 


(vii) 


V11J 


CONTENTS. 


CHAPTER  IV. 


PARTIES. 


19 


PLAINTIFFS. 

36.  Keal  party  in  interest  must  sue. 

37.  Parties  having  united  interest  may 

sue. 

38.  Assignees  may  sue. 

WHAT   MAY   BE   ASSIGNED. 

39.  The  statute. 

40.  Assignment  of  judgments. 

41.  Vendors'  liens. 

42.  Accounts. 

43.  Promissory  notes. 

44.  What  not  assignable. 

45.  Eight  of  action  for  tort. 

46.  Chattels  not  in  possession. 

47.  Certificates  of  purchase  and  guar- 

anties. 

ACTIONS   BY   AND   AGAINST   PUBLIC 
OFFICERS. 

48.  Township  trustees. 

49.  On  bonds  payable  to  the  state. 

50.  On  bond  of  public  officer. 

51.  On  bond  of  county  treasurer. 

52.  Commissioner  to  sell  real  estate. 
63.  On  bond  of  township  trustee. 

54.  When  the  state  real  party  in  in- 

terest. 

55.  In  actions  for  money  due  the  state 

in  the  hands  of  public  oificer. 

56.  Surety  of  the  peace. 

57.  To  contest  elections. 

58.  On  guardian's  bond. 

59.  Eelators   in    actions   against    tele- 

graph and  other  companies,  un- 
der the  statute  regulating  taxa- 
tion. 

EXECUTORS,  ADMINISTRATORS,  TRUS- 
TEES OF  AN  EXPRESS  TRUST,  AND 
PERSONS  AUTHORIZED  BY  STAT- 
UTE TO  SUE. 

60.  May  sue  without  joining  party  in 

interest. 

61.  Agent  not  trustee  of  aji  express 

trust. 


62.  Who  is  trustee  of  an  express  trust. 
6iJ.  Who  authorized  by  statute  to  sue. 

ACTIONS    THAT   SURVIVE. 

64.  Personal  representative  may  sue. 

65.  For  injuries  resulting  in  death. 

66.  Authority  to  sue  under  decedents' 

act. 

ACTIONS    RELATING    TO    REAL    ESTATE. 

67.  General  rule. 

68.  Exceptions,  where  personal  estate 

insufficient  to  pay  debts. 

69.  Where    no    heirs   present   to  take 

possession  of  real  estate. 

70.  Growing  crops. 

71.  On    bond  of  administrator   or  ex- 

ecutor. 

72.  For  what  causes    action    on   bond 

may  be  brought. 

73.  When  creditor  may  sue  on  bond. 

74.  Action    to   set   aside  allowance  of 

fraudulent  claim. 

MARRIED    WOMEN    AS    PLAINTIFFS. 

75.  When  may  sue  alone. 

76.  When  husband  refuses  to  join  in 

action. 

77.  When  wife  may  PIH-  for  husband. 

INFAV.    . 

78.  When  may  sue. 

79.  When  sole   plaintiff  must  sue  by 

next  friend. 

80.  May  sue  as  poor  person,  without 

next  friend. 

GUARDIANS   AS   PLAINTIFFS. 

81.  When  may  sue  as  such. 

82.  For  seduction  of  ward. 

83.  Foreign  guardians. 

84.  In  settlement  of  decedents'  estates. 

MISCELLANEOUS. 

85.  Unmarried  female  may  sue  for  her 

own  seduction. 


CONTEXTS. 


IX 


86.  Action    by  poor  person. 

87.  When  proper  plaintiff  refuses  to 

join  in  action. 

88.  When  parties  are  numerous,  part 

may  sue  for  all. 

89.  When  surviving  partner  may  sue. 


90.  Assignee  for  benefit  of  creditor. 

91.  For  goods  shipped  C.  ().  D. 

92.  Persons  of  unsound  mind. 

PARTIES   DEFENDANT. 

93.  Who  proper  defendants. 


CHAPTER  V. 


JOINDER  OK  PARTIES 


94.  Object  of  the  code. 

95.  All  parties  united  in  interest  must 

be  joined  as  plaintiffs.     . 
9G.  When  persons  having  an  interest 
need  not  be  joined. 

97.  What  is  meant  by  unity  of  inter- 

est. 

98.  Changes   wrought  by   the   code; 

unity  of  interest. 

99.  The  authorities. 

100.  Application  of  the  rule. 

101.  Effect  of  joining  too  many  plaint- 

iffs. 

102.  Authorities  inconsistent  with  the 

statute. 

103.  Executors,  administrators,  trustees 

of  express  trusts,  or  guardians 
may  sue  alone. 

104.  The   statute   authorizing  joinder 

liberally  construed. 

105.  When  one  party  may  sue  for  all. 

106.  In  actions  relating  to  real  estate ; 

tenants  in  common. 

107.  Actions  to  recover  real  estate. 

108.  By  trustee  to  foreclose  mortgage. 

109.  Actions  to  contest  wills. 

110.  Married  women. 

111.  Actions  for  injury  to  the  wife. 

112.  Who  must  sue  for  injury  causing 

the  death  of  the  wife. 

113.  Must  be  some  person  entitled  to 

damages  recovered,  or  no  action 
can  be  maintained. 

114.  Two  causes  of  action  arise  in  case 

of  injury   to   wife;    when    hus- 
band may  sue. 

115.  On  notes  held  by  different  parties, 

secured  by  same  mortgage,  par- 
t'<'-j  c;ii!  not  join  as  plaintiffs. 


WHO  MAY  BE  JOINED  AS  DEFENDANTS. 

116.  The  statute. 

117.  Necessary   parties   must   be,  and 

proper  parties  may  be,  joined. 

118.  Who  are  necessary  defendants. 

119.  Who  are  proper  defendants. 

120.  In  actions  on  joint  contracts. 

121.  Several   judgments    may   be    re- 

covered against  parties  jointly 
sued. 

122.  Only  parties  liable  in  the  same 

right  should  be  joined. 

123.  In  actions  on  notes  and  bills. 

124.  Executor  or  administrator  of  joint 

contractor  can  not  be  joined 
with  survivor 

125.  Official     bonds,     and     bonds     of 

executors,  administrators,  and 
guardians,  may  be  treated  as 
joint  or  several. 

126.  All  or  any  of  the  parties  severally 

or  jointly  and  severally  liable 
may  be  sued,  at  the  plaintiff's 
option.' 

127.  Principal    and     surety    may    be 

joined,  but  principal  and  guar- 
antor can  not. 

128.  When    indorser   may   be   joined 

with  maker  of  promissory  note 
or  drawer  of  bill  of  exchange. 

129.  What   promissory  notes   are   ne- 

gotiable by  the  law  of  this 
state. 

130.  When   individual   members  may 

be  sued  for  debts  of  corpora- 
tion. 

131.  In    action    by   assignee,    without 

indorsement,  assignor  must  be 
joined. 


CONTENTS. 


NECESSARY  DEFENDANTS  IN  ACTIONS 
FOR  SPECIFIC  PERFORMANCE  OF 
CONTRACTS  TO  CONVEY  REAL  ES- 
TATE. 

132.  By  vendee. 

133.  By  vendor. 

134.  Where  vendor  is  dead. 

IN    FORECLOSURE    OF    MORTGAGES. 

135.  Necessary  and  proper  parties. 

136.  Where  several  notes  secured  by 

the  same  mortgage  are  held  by 
different  parties. 

137.  When    wife   necessary   party   in 

foreclosure  against  husband; 
where  wife  does  not  join  in 
mortgage. 

138.  Effect   of   statute   making   wife's 

interest  absolute  on  judicial  sale. 

139.  Wife  can  not  maintain  an  action 

for  partition,  where  mortgage  is 
assumed  by  husband  for  pur- 
chase-monej". 

140.  Who   must  be  made  defendants, 

mortgagor  being  dead. 

141.  Owner   of    real    estate   must    be 

made  a  defendant. 

142.  Mortgagor  who  has  conveyed  real 

estate  not  a  necessary  party. 

143.  When   mortgagor   has   conveyed 

part  of  real  estate  mortgaged. 


144.  If  mortgagor  deceased,  persona) 

representatives     not    necessary 
parties. 

145.  Junior  incumbnmcers  proper  but 

not  necessary  parties. 

146.  Pendente  lite  purchasers 

147.  Heirs  of  purchasers. 

148.  Prior  incumbrancers. 
140.  Surviving  partner. 

PARTNERSHIP   CONTRACTS. 

150.  Common     law    rule,    where    one 

partner  is  deceased. 

151.  Equitable  rule. 

152.  Under  the  code. 

153.  The  authorities  under  the  code. 

154.  Effect  of  the  authorities. 

155.  Dormant  partners. 

156.  Nominal  partners. 

ACTIONS    TO    PARTITION    REAL    ESTATE. 

157.  All  the  owners  necessary  parties. 

158.  Creditors. 

159.  Parties  holding  liens  on  individ- 

ual interests. 

1GO.  Parties  laboring  under  legal  disa- 
bilities. 

161.  Where  the  state  is  interested. 

162.  In  actions  to  reinstate  lost  or  de, 

stroyed  papers  or  records. 


CHAPTER  VI. 
NEW  PARTIES — INTERPLEADER 113 

170.  In  actions  to  recover  real  or  per- 

sonal property. 

INTERPLEADER. 

171.  The  statute. 

172.  When   party  will   be  substituted 

by  interpleader. 

173.  How  new  party  substituted. 

174.  The  notice. 

175.  When  original  party  will  be  dis- 

charged. 


163.  When   new  parties  may  be  sub- 

stituted. 

164.  Death  of  party;   personal  repre- 

sentative substituted. 

165.  Under  the  decedents'  act. 

166.  When  heirs  substituted. 
1»>7.  In  case  of  legal  disability. 

168.  When  party  transfers  his  interest. 

169.  When  complete  determination  of 

controversy  can  not  be  had  with- 
out new  parties. 


CONTENTS. 


XI 


CHAPTER  VII. 
CIVIL  ACTIONS i21 


176.  The  statute. 

177.  Construction  of  the  statute. 


178.  The  authorities. 


CHAPTER  VIII. 
ACTIONS,  WHERE  COMMENCED ]?'. 


L    ACTIONS       THAT       MUST       BB      COM- 
MENCED WHERE  THE  SUBJECT  OF 
THU    ACTION   IS   SITUATE. 

179.  The  statute. 

180.  Actions  for  specific  performance 

of  contracts  to  convey  real  es- 
tate. 

181.  To  set  aside   fuaudulent  convey- 

ances of  real  estate. 

182.  To  foreclose  mortgages. 

183.  For  injury  to  real  estate. 

184.  Where   real   estate   is   situate  in 

more  than  one  county,  suit  may 
be  brought  in  either. 

185.  Counterclaim. 

186.  For  breach  of  covenant. 

2.  ACTIONS  THAT  MUST  BE  BROUGHT 
IN  THE  COUNTY  WHERE  THE 
CAUSE  OF  ACTION  AROSE. 

187.  The  statute. 

188.  Construction  of  the  statute. 

3.   ACTIONS   AGAINST   CORPORATIONS. 

189.  The  statute. 

190.  Construction  of  section  309. 


4.  ACTIONS  FOR  INJURIES  TO  PERSO., 
OR  PROPERTY,  AND  UPON  A  LIA- 
BILITY AS  COMMON  CARRIERS. 

191.  The  statute. 

192.  Construction  of  the  statute. 

5.    AGAINST    FOREIGN    CORPORATIONS. 

193.  In  any  county  where  money  or 

effects  belonging  to  or  due  com- 
pany may  be  found. 

6.  TO    CONTEST    OR    ESTABLISH    WILLS. 

194.  In  county  where  will   should  be 

probated. 

7.  ACTIONS    THAT    MUST    BE   BROUGHT 

IN    THE    COUNTY  WHERE    ONE    OF 
THE    DEFENDANTS    RESIDES. 

195.  The 'statute. 

196.  Construction  of  the  statute. 

8.    ON    BILLS   AND    NOTES. 

197.  In  county  where  one  of  the  mak- 

ers,  drawers,   or   acceptors    re- 
sides. 

198.  Attachment  proceedings. 

199.  Capias  ad  respondendum. 

200.  Actions  in  replevin. 

201.  Petition  to  sell  real  estate,  by  ad- 

ministrator. 

202.  Non-residents. 


CHAPTER  IX. 
ACTIONS,  HOW  COMMENCED 145 


THE    SUMMONS    AND    PUBLICATION.  207. 

203.  The  statute.  208. 

204.  "What  is  the  commencement  of  an 

action.  209. 

205.  Summons  must  be  made  returna- 

ble at  first  term  after  its  issue. 

206.  Summons,   when   returnable   be- 

fore justice  of  the  peace.  210. 


What  summons  must  contain. 

When  new  summons  must  issue 
on  cross  complaint  of  surety. 

Summons  must  issue  on  supple- 
mental complaint. 

SERVICE   OF   SUMMONS. 

The  statute. 


Xll 


CONTENTS. 


211.  Summons,  how  served,  when  de- 

fendant resides  out  of  the  state. 

212.  Service  on  infants. 

HOW    SERVED    ON    CORPORATIONS. 

213.  The  statute. 

214.  Officers  upon  whom  service  may 

be  made. 

215.  In   actions   against  railroad  cor- 

porations for  killing  stock. 

216.  In  actions  to  enforce  liens  against 

boats  and  other  water-crafts. 

217.  In  mandamus. 

218.  In  actions  against  townships. 

PUBLICATION. 

219.  The  statute. 

220.  What  must  be  shown  by  the  affi- 

davit for  publication. 

221.  How   long  publication    must   be 

made. 

HOW   DEFECTS    IN    SERVICE  WAIVED. 

222.  By  appearance. 

223.  Special  appearance  does  not  waive 

defects. 

224.  What  constitutes  an  appearance. 

225.  An    agreement   indorsed   on   the 

complaint,  waiving  process,  not 
an  appearance. 

226.  Appearance  may  be  in  person  or 

by  attorney. 

227.  Appearance  by  attorney,  without 

authority. 

228.  When  attorney's  authority  to  ap- 

pear can   be  controverted  in  a 
direct  proceeding. 

229.  Some  authorities  the  other  way. 

230.  Effect  of  the  rule. 


231.  Effect  of  appearance  and  attempt 

to  set  aside  default. 

232.  Effect  of  agreement  for  judgment ; 

appearance    at    taking    deposi- 
tions; giving  special  bail. 

233.  Can  be  no  waiver  on  the  part  of 

an  infant. 

234.  Appearance  by  agreement  before 

justice  of  the  peace. 

235.  Party  may  expressly  waive   ser- 

vice of  process. 

236.  On    voluntary    appearance,   may 

demand  continuance,  when. 

SERVICE   BY   COPT. 

237.  How  made. 

238.  Meaning  of  term  "last  or  usual 

place  of  residence." 

PROOF    OF   SERVICE. 

239.  The  statute. 

240.  When  service  is  made  by  private 

individual. 

241.  Proof  of  service,  when  made  on 

party  out  of  state. 

242.  By    written    acknowledgment  of 

defendant  on  back  of  summons. 

243.  Officer's  return  must  be  attached 

to  or  indorsed  on  back  of  sum- 
mons. 

244.  Return  of  officer,  when  conclusive. 

245.  Proof  of  publication. 

246.  Proof  of  notice  given  out  of  court. 

247.  What  return  should  show. 

DEFECTIVE    PROCESS. 

248.  How  to  proceed  in  case  of  defec- 

tive process  or  service. 

249.  Agreed  case,  when  and  how  com- 

menced. 


CHAPTER  X. 
LIMITATIONS  OF  ACTIONS 167 


250.  The  statute. 

251.  Special  statutes. 

252.  Statute  affects   the  remedy  only, 

and  is  constitutional. 


253.  A  statute  which   takes   away  an 

existing  cause  of  action  or  de- 
fense is  unconstitutional. 

254.  WThen  a  statute  will  be  construed 

to  be  retroactive. 


CONTENTS. 


Xlll 


WHEN    STATUTE    COMMENCES     TO    RUN. 

255.  From   time   cause   of    action    ac- 

crues. 

WHEN    CAUSE    OP    ACTION    ACCRUES. 

256.  In   actions   on   promissory  notes 

payable  in  bank. 

257.  In  actions  against  agents,  factors, 

and  attorneys. 

258.  Actions  against   trustees,  and   to 

enforce  subsisting  trusts. 

259.  Where  an  officer  or  other  person 

is  bound  by  statute  to  pay  or  ac- 
count at  a  fixed  time. 

WHEN    A    DEMAND    IS    NECESSARY. 

260.  Kules  established  by  decided  cases. 

261.  Notes   payable  when   maker   "is 

able." 

262.  Actions  to  recover  personal  prop- 

erty. 

263.  In    an    action    by    one    partner 

against  another  for  an  account- 
ing. 

264.  Demand  excused  by  some  act  of 

the  defendant. 

265.  When    cause    of   action   accrues 

where  a  tender  is  necessary. 

266.  Effect    of    statute   where    action 

may  be  in  tort  or  upon  contract. 

267.  Actions  on  open  and  current  ac- 

counts. 

268.  Meaning  of  the  term  "open  and 

current  account." 

EXCEPTIONS. 

269.  Statutory  exceptions. 

SET-OFF. 

270.  As  a  defense,  not  barred. 

LEGAL   DISABILITIES. 

271.  Statute    does    not    apply    where 

party   is    laboring   under   legal 
disabilities. 

272.  Meaning  of  the  term  "  under  le- 

gal disabilities.'' 

273.  Where  more  than  one  legal  disa- 

bility exists. 


274.  Effect  of  disability  in  case  of  ap- 

peals. 

275.  Non-resident  of  the  state,  or  ab- 

sent on  public  business. 

276.  Section  297  only  applies  to  causes 

of  action  that  accrue  out  of  the 
state. 

277.  What   is   meant   by   the    phrase 

"absent  on  public  business." 

278.  Limitations  of  another  state  can 

not  be  set  up  in  an  action  re- 
specting real  estate. 

279.  Case  of  Smith  v.  Wiley,  21  Ind. 

224,  criticised. 

280.  Effect  of  death  of  one  of  the  par- 

ties before' the  statute  has  run 
its  full  time. 

281.  Where  plaintiff  has  once  brought 

his  action  and  failed;  time  ex- 
tended in  certain  cases. 

282.  Where  the  action  abates,  or  is  de- 

feated by  the  death  of  one  of 
the  parties. 

283.  Where  the  judgment  is  arrested 

or  reversed  on  appeal. 

CONCEALMENT. 

284.  Statute  does   not   run  where  the 

defendant  conceals  the  cause  of 
action. 

285.  What   amounts    to   concealment, 

within  the  meaning  of  the  stat- 
ute. 

NEW   PROMISE — ACKNOWLEDGMENT. 

286.  Cause  taken  out  of  the  statute  by 

acknowledgment  or  promise  in 
writing. 

287.  This  exception  applies  only  to  ac- 

tions on  contract. 

288.  What  is  a  sufficient  new  promise. 

289.  Effect     of     acknowledgment     or 

promise  by  one  joint  contrac- 
tor. 

290.  A  joint  contractor,  once  released, 

can  not  be  made  liable  to  his 
co-contractor,  who  has  been 
compelled  to  pay  the  debt. 


XIV 


CONTENTS. 


PART    PAYMENT. 

291.  Effect  of  part  payment. 

292.  "What  is  part  payment,  within  the 

meaning  of  the  statute. 

293.  By  and  to  whom  payment  must 

be  made. 

294.  Will  a  new  promise,  acknowledg- 

ment, or  part  payment,  by  an 
executor  or  administrator,  avoid 
the  operation  of  the  statute? 

PARTNERS. 

295.  A  promise  or  part   payment   by 

one  partner  will  bind  the  firm, 
if  made  before  dissolution,  but 
not  if  made  afterward. 

CITIZENS   OF   BELLIGERENT    POJVERS. 

296.  The   statute   of    limitations   does 

not  run  between  citizens  of  dif- 
ferent belligerent  powers  during 
the  existence  of  war. 

JOINT    CONTRACTS. 

297.  Practice    where    one   of    several 

persons  entitled  to  bring  a  joint 
action  is  barred  by  the  statute. 

MECHANICS'  LIENS. 

298.  Limitations  in  case  of  mechanic's 

lien. 

299.  Time  ceases  to  run  from  the  time 

notice  is  left  for  record. 

300.  Notice  must  show  if  a  credit  has 

been  given,  or  the  time  in  which 
to  sue  will  be  limited  to  one 


year  from  the  completion  of  the 
work. 

301.  Limitation  does  not  apply  to  no- 

tice required  by  section  5295  to 
be  given  by  sub-contractors. 

302.  When  statute  commences  to  run 

in  such  cases. 
i 

HEIRS,    DEVISEES,    AND    DISTRIBUTEES. 

303.  Limitation     of     actions     against 

heirs,  devisees,  and  distributees, 
for  the  debts  of  the  decedent. 

THE     UNITED    STATES    AND    STATE     OF 
INDIANA. 

304.  The   United    States    not   barred, 

and  the  State  of  Indiana  not 
barred  by  the  statute,  except  as 
to  sureties. 

JUDGMENTS   AND   DECREES. 

305.  Limitations  of  judgments  and  de- 

crees. 

HOW    QUESTION   RAISED. 

306.  How  the  question  of  the  statute  of 

limitations  may  be  raised. 

307.  Statute  must  be  specially  pleaded. 

308.  Statute   need   not   be  pleaded  in 

actions  to  lecover  real  estate. 

309.  Exceptions  to  the  statute  must  be 

specially  pleaded  by  way  of  re- 

p]y- 

310.  May  plead  exceptions  in  supreme 

court. 


CHAPTER  XI. 

JOINDER  OF  CAUSES  OF  ACTION 


214 


311.  The  statute. 

312.  Effect  of  misjoinder. 

313.  Difference  between  misjoinder  and 

duplicity. 

314.  Misjoinder  of  parties  and  causes 

of   action   in    same   complaint; 
how  defect  reached. 

315.  The  liabilities  of  defendants  must 

be  the  same. 


316.  Actions  against  different  defend- 

ants may  be  joined,  when. 

317.  Meaning   of  section   280   of  the 

statute. 

318.  Actions  for  tort  and  on  contract 

may  be  joined,  when. 

319.  The  rule  in  equity. 

320.  Causes  that    may  be  joined  par- 

ticularlv  classified  in  Indiana. 


CONTEXT.-!. 


XV 


321.  Actions   to   set   aside   fraudulent- 

conveyances  made  by  debtor  to 
different  parties  may  be  joined. 

322.  Meaning  of  term    "cause  of  ac- 

tion." 

023.  Whether  causes  of  action  are  im- 
properly joined  determined  from 
facts  stated  in  complaint. 

321.  May  be  but  one  causeof  action  and 
several  remedies. 

325.  In  equity,  if  plaintiff  had  one 
general  right,  there  was  but  one 
cause  of  action. 

320.  Meaning  of  phrase  "money  de- 
mands on  contract." 

327.  Money  demand  for  a  tort  can  not 

be  joined  with  one  on  contract. 

328.  Statute  liberally  construed. 

329.  Difference  between  our  code  and 

those  of  other  states. 

330.  In  equity,  the  causes  authorized 

by  section  279  to  be  joined  were 
treated  as  one  cause  of  action. 

331.  Actions  against  husband  and  wife. 


332.  Guarantor  can  not  be  joined  with 

maker  of  notes. 

INJURY    TO    PROPERTY. 

333.  Construction  of  the  statute. 

INJURIES    TO  PERSON  AND  CHARACTER. 

334.  What  included  in  this  class. 

335.  Injuries  growing  out  of  the  same 

wrong  can  not  always  be  joined. 
33G.  Causes  of  action   must  inure   to 
plaintiff  in  the  same  right. 

337.  Damages  to  real  estate;  when  can 

be  joined  with  action  to  recover 
possession. 

338.  Actions  for  specific  performance 

and  to  avoid  contracts  for  fraud 
and  mistake. 

339.  To  recover  purchase-money,  and 

for  sale  of  real  estate. 

340.  Actions   for  partition  and  to -en- 

force  lien   on  same  real  estate 
can  not  be  joined. 


CHAPTER  XII. 


PLEADINGS — THE  COMPLAINT 


341.  Effect  of  the  code  on  common-law  351. 

and  equity  rules  of  pleading. 

342.  The  statute.  352. 

343.  Objections  to  the  system  consid-  353. 

ered.  354. 

THE    COMPLAINT — GENERAL    RULES. 

344.  The  statute.  355. 

345.  Must  contain  the  title  of  the  cause. 

340.  Conclusions  of  law  must  not  be     356. 
pleaded. 

347.  Neither  presumptions  of  law  nor 

matters  of  which  judicial  notice     357. 
will  be  taken  need  be  stated  in 
pleading.  358. 

348.  Of  what  the  courts  will  take  ju- 

dicial notice.  359. 

349.  Of  what  the  courts  will  not  take 

judicial  notice.  360. 

350.  Comments  on  the  decided  cases.        361. 


Complaint   need   not  be   in   any 

particular  form. 

Evidence  should  not  bu  pleaded. 
Facts  must  be  stated  positively. 
Complaint  must  show  cause  of 

action     in     all    who     unite    as 

plaintiffs. 
Where  complaint  may  be  for  tort 

or  upon  contract ;  election. 
Every  substantial  fact  necessarv 

to  constitute  a  cause  of  action 

must  be  alleged. 
"When    it   is   necessary   to   plead 

matter  of  inducement. 
Matter   of    aggravation    may    be 

ple:ided. 
Privity  of  contract  need  not  be 

shown  under  the  code. 
Fictions  must  not  be  pleaded. 
Defense    should     not    be    antici- 
pated. 


XVI 


CONTENTS. 


EXCEPTIONS    TO    RULE    THAT    DEFENSE 
MUST   NOT   BE   ANTICIPATED. 

362.  Negligence. 

363.  Non-payment. 

STATUTORY    RIGHTS. 

:!04.  Facts  must  be  stii'od. 

365.  Exceptions  in  the  statute. 

366.  Statute  of  frauds. 
:>67.  Statute  of  limitations, 

CAPACITY   TO   SUE. 

368.  In  actions  by  executors  or  admin- 

istrators, their  capacity  to  sue 
need  not  be  alleged. 

369.  The  rule  in  actions  by  guardians. 

370.  In  actions  by  foreign  guardians, 

right  to  sue  must  be  shown. 

371.  In  actions  by  or  against  corpora- 

tions, facts  showing  corporate 
existence  need  not  be  pleaded. 

SURPLUSAGE. 

372.  What  is  surplusage. 

373.  What  is  material  in  a  complaint. 

374.  Effect  of  too  great  particularity 

of-  averment. 

DUPLICITY. 

375.  What  will  amount  to  duplicity. 

376.  Several  causes  of  action  may  be 

stated  in  the  same  complaint  in 
different  paragraphs,  numbered. 

377.  Where  there   are   two   causes  of 

action,  and  but  one  relief,  causes 
should  be  stated  in  separate 
paragraphs. 

378.  The  same  cause  of  action  may  be 

differently  stated  in  different 
paragraphs. 

379.  Inconsistent  causes  of  action  may 

be  joined. 

380.  One  cause  of  action  should  not  be 

divided  up  and  set  out  in  differ- 
ent paragraphs. 

381.  In     suing    on    a    bond,    several 

breaches  may  be  alleged  in  the 
same  paragraph. 


382.  Action  on  mortgage  securing  sev- 

eral notes. 

383.  Each   paragraph    must   be   good 

within  itself. 

CERTAINTY. 

384.  The  complaint  should  be  certain. 

385.  Certainty  as  to  time. 

386.  Certainty  as  applied  to  place. 

387.  Complaint  need  not  allege  a  de- 

mand at  any  particular  place  in 
actions  on  bills  and  notes. 

388.  Certainty  required   in  averments 

of  subject-matter. 

CERTAINTY    OF    DESCRIPTION. 

389.  Of  personal  property. 

390.  In  actions  relating  to  real  estate. 

391.  Monuments  control  distances. 

392.  In    actions    for  specific   perform- 

ance of  contracts  to  convey  real 
estate. 

393.  In  actions  to  enforce  mechanics' 

liens. 

EXCEPTIONS    TO     COMMON-LAW    RULES 
AS    TO    CERTAINTY. 

394.  Conditions  precedent. 

395.  The  section  does  not  apply  to  al- 

legations of  excuse  for  non-per- 
formance of  conditions. 

396.  Private  statutes. 

397.  Actions  for  libel  and  slander. 

398.  On  judgments. 

399.  In  actions  to  contest  wills. 

400.  Negligence. 

FRAUD. 

401.  Facts  constituting  the  fraud  must 

be  stated. 

CONSIDERATION. 

402.  When   a   consideration    must   be 

alleged. 

403.  Facts  showing  consideration  must 

be  pleaded. 

TITLE. 

404.  The  complaint  must  show  title. 


CONTENTS. 


XVI! 


405.  Title  to  real  property;  actions  to 

recover  real  estate* 

406.  Can  not  allege  a  legal  and  recover 

on  an  equitable  title. 

407.  Possession    may  be  recovered  on 

an  equitable  title. 

408.  Where  ownership  is  alleged  gen- 

erally, can  the  plaintiff  recover 
on  proof  of  an  equitable  title? 

409.  Complaint  need  not  show  title  in 

action  by  landlord  against  ten- 
ant for  possession. 

410.  In  actions   for  forfeiture   for  the 

failure  of  condition  subsequent. 

411.  For  trespass  on  land. 

412.  To  recover  personal  property. 

413.  In  actions  on  promissory  notes. 

IN  ACTIONS  OTHER  THAN  FOB  MONEY 
OR  SPECIFIC  PROPERTY,  THE  COM- 
PLAINT MUST  SHOW  THAT  THERE 
IS  NO  OTHER  ADEQUATE  REMEDY. 

414.  Rule  not  changed  by  the  code. 

IN  ACTIONS  FOUNDED  ON  WRITTEN  IN- 
STRUMENT, THE  ORIGINAL  OR  A 
COPY  MUST  BE  FILED  WITH  AND 
MADE  A  PART  OF  THE  COMPLAINT. 

415.  The  statute. 

416.  Exhibits    control    averments    in 

pleading. 

417.  What    is    a   written    instrument 

within  the  meaning  of  the  sec- 
tion. 

418.  When  the  written  instrument  is 

the  '-foundation  of  the  action." 

419.  Must   be   referred   to   and   made 

part  of  the  pleading. 

420.  Written  instrument,  not  the  foun- 

dation of  the  action,  can  not  aid 
the  pleading. 


421.  Contract   not    alleged    to    be  in 

writing    conclusively  presumed 
to  be  verbal. 

422.  The  same  copy  may  be  referred 

to    and    made    part    of    every 
pleading  in  the  case.    • 

ACTIONS  AGAINST  HEIRS    FOR  DEBTS  07 
ANCESTORS. 

423.  What  complaint  must  show. 

DEMAND    FOR    RELIEF1. 

424.  The   complaint  should  contain  a 

prayer  for  relief. 

425.  Prayer  can  not  enlarge,  but  may 

diminish,  cause  of  action. 

426.  Complaint    must    be   signed    by 

plaintiff  or  his  attorney. 

427.  Cross-complaint. 

WHEN    COMPLAINT     SHOULD     BE    VERI- 
FIED. 

428.  Only  necessary,  as  a  rule,  where 

extraordinary      relief      is      de- 
manded. 

429.  In  replevin. 

430.  Injunction. 

431.  Mandate  and  prohibition 

432.  Attachment. 

433.  Arrest  and  bail. 

434.  To  review  judgment. 

435.  Execution  against  the  body. 

436.  Proceedings     supplementary     to 

execution. 

437.  Proceedings  to  revive  judgments. 

438.  Ne  exeat. 

439.  Habeas  corpus. 

440.  Proceedings  to  contest  wills. 

441.  Applications  to  set  aside  default. 

442.  Complaint  for  new  trial. 


CHAPTER  XIII. 

PROCEEDINGS  AFTER  COMPLAINT  FILED .,...  294 


1.    WHERE    PART    OF    DEFENDANTS    ARE 
NOT   SERVED    WITH    PROCESS. 

443.  The  .statute. 


444.  Effect  of  the  statute. 

445.  Amendment  of  section  641. 


XV1H 


CONTENTS. 


2.  WHERE  THERE  IS  A  RETURN  OF  NOT 

FOUND. 

446.  The  statute. 

447.  Judgment  taken  against  one  de- 

fendant abates  action  as  to  oth- 
ersj  unless  continued  as  to  them. 

3.  WHERE    THE     PARTIES    ARE    SERVED 

WITH    PROCESS,  OR  ENTER  AN  AP- 
PEARANCE— DEFAULT. 

448.  When  default  may  be  taken. 

449.  Default,  where  there  is  no  appear- 

ance. 

450.  Where  appearance  is  withdrawn. 

451.  Default  on  failure  to  answer  in- 

terrogatories. 

452.  Where  a  defendant  fails  to  attend 

as  a  witness  for  plaintiff. 

453.  Answer  must  be  stricken  out  be- 

fore default  can  be  taken. 

454.  Can  not  be  taken  against  an  in- 

fant. 

455.  What  is  admitted  by  a  default. 
4oo.  Does   not    admit   jurisdiction   of 

court,  or  that  complaint  states  a 
cause  of  action. 


457.  When  defendant  is  constructively 

summoned. 

4.  RIGHTS    OF    DEFENDANTS  AFTER  DE- 

FAULT. 

458.  May  contest  amount  of  damages. 

459.  May  appeal  to  the  supreme  court. 

5.  WHEN  AND  HOW  DEFAULT  SET  ASIDE. 

460.  The  statute. 

461.  Application  may  be  by  motion  or 

complaint. 

462.  What  motion  or  complaint  must 

contain. 

463.  How  proof  made  in  applications 

to   set  aside  default,  and  what 
may  be  controverted. 

464.  Effect    of   setting    aside    default 

taken  against  one  of  several  de- 
fendants. 

465.  Court  can  not  set  aside  default,  on 

condition  that  costs  are  paid. 

466.  Section  396  does  not  apply  to  ac- 

tions for  divorce. 

467.  The  section  applies  to  plaintiffs. 

468.  Effect  of  setting  aside  default. . 


CHAPTER  XIV. 


DEMURRER.. 


309 


469.  The  statute.  477.  Section  307  of  the  statute  one  of 

470.  Must  be  for  some  one  of  the  stat-  jurisdiction. 

utory  causes.  478.  Jurisdiction  of  the  person  waived 

471.  Form.  by  failure  to  demur. 

472.  For   one   cause    does    not    reach 

other  defects.  2.  That  the  plaintiff  has  not  legal  co- 

473.  Neither  general   nor  special   de-  parity  to  sue. 

murrers  under  the  code.  479.  Applies  to  legal  disabilities. 


CAUSES    FOR   DEMURRER. 

1.  The  court  has  no  jurisdiction  over 
the  person  of  the  defendant  or  the 
subject-  matter. 

474.  Jurisdiction  presumed. 

475.  In     inferior    courts,    jurisdiction 

must  affirmatively  appear. 

476.  When  jurisdiction  of  the  person 

may  be  questioned  by  demurrer. 


3.  That  there  is  another  action  pending 
between  the  same  parties  for  the 
same  cause. 

480.  Does  not  apply  to  actions  pending 

in  another  state. 

481.  Nor     to     actions      subsequently 

brought. 


CONTENTS. 


XIX 


4.  That    there   is   a   defect   of   parties 

plaintiff"  or  defendant. 

482.  Construction  of  the  clause. 

483.  What  demurrer  for  defect  of  par- 

ties must  contain. 

5.  That    the  complaint    does   not   state 

facts  sufficient  to  constitute  a  cause 
of  action. 

484.  Not  waived  by  failure  to  demur. 

485.  Defects  not  reached  by  demurrer 

for  want  of  sufficient  facts. 

486.  Effect  of  pointing  out  particular 

defects. 

6.  Misjoinder  of  causes  of  action. 

487.  Must  be  to  whole  complaint. 

488.  Wbnt  is  misjoinder  of  causes  of 

action. 

489.  Objection  must  be  raised   by  de- 

murrer. 

490.  Difference  between  misjoinder  of 

causes  of  action  and  misjoinder 
of  parties. 

vf  HAT   DEFECTS    DEMURRER  WILL    NOT 
REACH. 

491.  Defects     formerly     reached     by 

special  demurrer. 

492.  Surplusage. 

493.  Uncertainty  or  indefiniteness. 

494.  Duplicity. 

495.  Irrelevant  and  redundant  matter. 

496.  Sham  defense. 

497.  How  pleading  shown  to  be  sham. 

498.  Rule  under  the  revised  code. 

499.  Can  general  denial  be  stricken  out 

as  sham  ? 

500.  Frivolous  pleading. 

501.  Repugnancy. 

502.  Argumentativeness. 

503.  That  pleading  is  not  verified. 

504.  Misjoinder  of  parties. 

505.  Misnomer. 

506.  Answer  of  set-off  in  tort. 

507.  Statute  of  limitations. 

508.  Amount  of  damages. 

509.  Illegality   of    contract   made   on 

Sunday. 


510.  Defects  in  prayer. 

511.  Part  of  paragraph. 

WHAT    DEFECTS   REACHED    BY    DEMUR- 
RER. 

512.  Departure. 

513.  That  written  instrument  founda- 

tion of  the  action  or  defense  is 
not  made  part  of  the  pleading. 

514.  The  statute  of  frauds. 

515.  Estoppel. 

516.  Variance. 

517.  In  claims  against  estates. 

518.  When    demurrer    equivalent    to 

motion  to  strike  out  or  dismiss. 

WHAT    IS  WAIVED    BY  FAILURE   TO  DE- 
MUR. 

519.  All  defects  appearing  on  face  of 

pleadings. 

520.  Exceptions;    that  the   court   has 

not  jurisdiction  of  the  subject- 
matter,  and  that  complaint  does 
not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  not 
waived. 

521.  Defects    cured    by    verdict    not 

waived. 

WHEN    DEMURRER    REACHES   BACK. 

522.  For  defects  not  cured  by  failure 

to  demur. 

523.  Want   of   jurisdiction,   and    that 

pleading  does  not  state  facts 
sufficient. 

524.  Demurrer  to  reply  reaches  defects 

in  answer  and  complaint. 

525.  Rule  under  the  revised  statute  of 

1881. 

526.  Demurrer  to   plea   in   abatement 

can  not  be  carried  back. 

WHAT    DKMURRER   ADMITS. 

527.  Facts  well  pleaded. 

JOINT,    SEVERAL,    AND     SEPARATE    DE- 
MURRERS. 

528.  When  joint  or  several. 

529.  Separate  demurrers. 


CONTENTS. 


530.  Demurrer   joint   as    to   pleading 

must    be    overruled,    if    either 
paragraph  good. 

531.  Joint  as  to  parties,  must  be  over- 

ruled, if  pleading  is  good  as  to 
either. 

HOW    DEFECTIVE    PLEADINGS    CURED. 

532.  By  verdict. 

533.  What  defects  cured  by  verdict. 

534.  By  answer. 

535.  By  statute. 

536.  By  award. 


540.  Can  not  plead  and  demur  at  same 

time. 

541.  By  going  to  trial. 

542.  Effect  of  adjudicated  cases. 

543.  When   court  presumed   to   have 

passed  upon  demurrer. 

544.  Effect  of  waiver. 

DEMURRER    IN    PARTICULAR   CASES. 

1545.  Petition  for  highway. 

546.  Mandate. 

547.  Proceedings  supplementary  to  ex- 

ecution. 


WHEN    RULING   ON    DEMURRER     HARM- 
LESS. 

637.  Sustained  to  good  paragraph. 

638.  Overruled  to  bad  paragraph. 

WHEN   DEMURRER   WAIVED 

539.  By  pleading  over. 


DEMURRER   TO    EVIDENCE. 

548.  Its  form. 

549.  What  demurrer  admits. 

550.  Waives  objection  to  adrflissibility 

of  evidence. 

551.  Joinder  in  demurrer. 

552.  What  joinder  admits. 


CHAPTER  XV. 

ANSWER..  .  ..  358 


553.  Scope  of  the  chapter. 

554.  Kule  to  answer. 

DISCLAIMER. 

555.  Nature  and  effect  of. 

556.  When  party  may  disclaim. 

557.  May   disclaim   part   and   answer 

part  of  complaint. 

558.  Interpleader. 

ABATEMENT. 

559.  Nature  of  the  defense. 

560.  Must  precede  pleas  in  bar. 

561.  Must  be  specially  pleaded. 

562.  Must  be  verified. 


567.  Another  action  pending. 

568.  Can   attachment   proceedings   be 

pleaded  in  abatement? 

569.  Misnomer. 

570.  Actions  prematurely  brought. 

571.  Death  of  party. 

572.  In  attachment  proceedings. 

HOW   MATTERS    IN    ABATEMENT 
WAIVED. 

673.  By  failure  to  demur. 

574.  By  pleading  to  the  merits. 

575.  By  going  to  trial  on  the  merits. 

576.  Answers    in    abatement    strictly 

construed. 


WHAT    MAY     BE     PLEADED     IN    ABATE- 
MENT. 

563.  Want  of  jurisdiction  of  the  per- 

son. 

564.  Want  of  capacity  to  sue. 

565.  Non-joinder  of  necessary  parties. 

566.  Must  show  that  omitted  defendant 

is  still  living. 


ANSWER    IN    BAR. 

577.  The  statute. 

THE    GENERAL    DENIAL. 

578.  Object  and  form. 

579.  What  may  be  proved  under. 

580.  Mitigation  of  damages. 


CONTENTS. 


XXI 


681.  In  actions  to   recover  real  estate 

and  to  quiet  title. 

WHAT   THE    GENERAL   DENIAL  ADMITS. 

682.  Capacity  of  plaintiff  to  sue. 

583.  Execution  of  written  instrument. 

684.  Executors,     administrators,     and 

guardians  need  not  deny  execu- 
tion of  written  instrument,  un- 
der oath. 

685.  Existence  of  corporation  plaintiff. 

NEW  MATTER — SPECIAL  ANSWER. 

586.  What  is  new  matter. 

MANNER   OF   STATEMENT. 

687.  Defenses     must     be     separately 
pleaded  and  numbered. 

588.  Answer  may  go  to  part  of  a  para- 

graph of  complaint. 

589.  May  confess  and  avoid  a  part  and 

deny  a  part  of  complaint  in 
same  paragraph. 

590.  Answer  must  state  facts. 

591.  Defenses  may  be  inconsistent. 

592.  Each    paragraph   must   be    good 

within  itself. 

593.  Equitable  defenses. 

WHAT   MUST   BE   PLEADED   SPECIALLY, 
AND    HOW   PLEADED. 

594.  Payment. 

695.  What  plea  of  payment  must  con- 
tain. 

596.  Payment  after  suit  brought. 

597.  Payment  of  less  than  is  due. 

598.  Accord  and  satisfaction. 

599.  Arbitration  and  award. 

600.  Want  of  consideration. 

601.  Who  may  plead  want  of  consid- 

eration. 

602.  Illegal  consideration. 

603.  Failure  of  consideration. 

604.  Partial  failure  of  consideration. 

605.  Former  adjudication. 

606.  Estoppel  in  pais. 

607.  Estoppel  against  married  women. 


608.  Release  of  surety;   failure  to  sue 

principal. 

609.  By  extending  time  to  principal. 

610.  By  alteration  of  the  contract. 

611.  By  surrender  of  lien  on  property 

of  principal,  or   other  security 
held  by  creditor. 

612.  Release  of  indorser;  by  failure  to 

sue  maker. 

613.  Tender. 

614.  Effect  of  tender. 

616.  Tender  after  suit  brought. 

616.  Failure  of  plaintiff  to  tender  per- 

formance. 

617.  Usury. 

618.  Who  may  plead  usury. 

619.  Breach   of   covenant;    deed    the 

foundation  of  the  action. 

620.  Of  title  and  for  quiet  enjoyment. 

621.  What  will  amount  to  an  eviction. 

622.  Covenant  against  incumbrances. 

623.  Covenants   in    deeds   of   general 

warranty. 

624.  Covenants  of  married  women. 

625.  Discharge  in  bankruptcy. 

626.  Statute  of  limitations. 

627.  The  statute  of  frauds. 

628.  Fraud. 

629.  Adverse  possession  of  real  estate. 

630.  Release  or  other  discharge. 

ANSWERS   IN   LIBEL   AND   SLANDER. 

631.  Mitigation  of  damages. 

632.  Truth  of  the  words. 

633.  In  tort  generally. 

634.  What  must  be  pleaded  specially 

by  executors  and  administrators. 

ANSWERS   THAT   MUST   BK   VERIFIED. 

635.  Non  est  factum. 

636.  Non  est  factum,  by  executors  an</ 

administrators. 

637.  Answer   in    proceedings    supple 

mentary  to  execution. 

ANSWERS   PUIS   DARREIN   CONTINU- 
ANCE. 

f>38.   When  and  how  pleaded. 


xxn 


CONTENTS. 


CHAPTER  XVI. 
SET-OFF — COUNTERCLAIM 420 


SET-OFF. 

639.  The  statute. 

640.  Nature  of  set-off. 

641.  Only  allowed  in  actions  for  money 

demands  on  contract. 

642.  May  be  pleaded   where   plaintiff 

treats  tort  as  contract. 

643.  The  set-off  must  consist  of  matter 

arising  out  of  debt,  duty,  or  con- 
tract. 

644.  Tort  may  be  treated  as  contract, 

and  pleaded  as  a  set-off. 

645.  Damages  need  not  be  liquidated. 

646.  Demands  must  be  mutual. 

647.  Exception  to  rule  that  demands 
.  must  be  mutual;  suretyship. 

648.  Where  plaintiff  holds  claim  sued 

on  as  trustee,  defendant  may  set 
off  demand  existing  in  his  favor 
against  the  cestui  que  trust. 

649.  Set-off  may   be   pleaded   against 

assignee. 

650.  Rule  where  note  sued  on  is  gov- 

erned by  the  law-merchant. 

651.  Set-off   must   be   of  a  subsisting 

debt  held  by  defendant  at  the 
time  suit  is  commenced. 

652.  Claim  barred  by  statute  of  limita- 

tions may  be  pleaded. 

653.  Surety  may  pay  debt  of  principal 

and  use  the  same  as  a  set-off. 

654.  May  be  pleaded   by  and  against 

executors  and  administrators. 

655.  Must  be  due  when  offered. 

656.  Right  of  set-off    between    banks 

and  depositors. 

657.  Set-off  can  not  be  pleaded  against 

married  women. 

658.  Character  of  indebtedness    must 

be  shown  by  the  pleading. 

659.  May  waive  set-off  and  bring  an 

independent  action. 

660.  Set-off  can  not  be  pleaded  against 

taxes. 


661.  Pleading   need    not   answer   the 

whole  complaint. 

662.  Judgment  may  be  set  off  against 

judgment. 

663.  Judgment  may  be  pleaded  as  a 

set-off  in   an  action  on  note  or 
other  indebtedness. 

COUNTERCLAIM. 

664.  The  statute. 

665.  Construction  of  the  statute. 

666.  Recoupment  merged  in  counter- 

claim. 

667.  Counterclaim  must  arise  out  of  or 

be  connected  with  the  plaintiff's 
cause  of  action. 

668.  Must  be  in  favor  of  the  defendant 

pleading  it. 

669.  Surety  can  not  plead  counterclaim 

in  favor  of  principal. 

670.  Part   of    defendants    may   plead 

counterclaim. 

671.  Must  be  against  the  plaintiff. 

672.  Must  impair,  affect,  or  qualify  the 

plaintiff's  right  to  relief. 

673.  Cause  of  action  in  plaintiff  need 

not  be  admitted. 

674.  Equitable  cause  of  action  may  be 

pleaded. 

675.  Counterclaim  must  exist  when  the 

action  is  commenced. 

676.  Tort  can  not  be  pleaded  as  coun- 

terclaim. 

677.  Pleading  can  not  perform  double 

office   of    answer   and   counter- 
claim. 

678.  Will  be  construed  to  be  either  an- 

swer or  counterclaim,  according 
to  the  facts  stated. 

679.  Demurrer  to  pleading  as  an  an- 

swer   does    not    reach    defects 
therein  as  a  counterclaim. 

680.  Must  plead  cause  of  action  as  a 

counter-claim,   or  pay   cost    of 
subsequent  action  thereon. 


CONTENTS. 


XXHl 


681.  Dismissal   of  original   complaint 
does  not  affect  counterclaim. 


682.  Cross-complaint  unknown  to  the 
code. 


CHAPTER  XVII. 


REPLY. 


451 


683.  The  statute. 

684.  The  general  denial. 


689.  Argumentative  reply. 

690.  Must  avoid  the  whole  answer. 


NEW    MATTKR.  STATUTE    OF    LIMITATIONS. 

685.  Must  support  the  complaint  and  691.  Exceptions   must  be  pleaded  by 

avoid  new  matter  in  the  answer.  way  of  reply. 

686.  Departure. 

687.  New  assignment.  SET-OFF. 

688.  New   matter   must    be    specially  692.  May  be  pleaded  to  a  set-off. 


pleaded. 


693.  Effect  of  failure  to  reply. 


CHAPTER  XVHI. 

VARIANCES  AND  AMENDMENTS...,  , 


455 


694.  Statutory  provisions. 

695.  Changes  effected  by  the  statute. 

696.  Amendments,  how  made. 

AMENDMENTS,    AS    OF    COURSE. 

697.  Before  pleading  is  answered. 

AMENDMENTS    BEFORE    TRIAL. 

698.  Before  the  issues  are  closed. 

699.  After  the  issues  are  closed. 

700.  Discretion  of  court. 

701.  After  demurrer  sustained. 

702.  After   reversal    by   the   supreme 

court. 

ON    THE    TRIAL. 

703.  Amendment  changing  the  issues 
•  .     may  be  made. 

AFTER   VERDICT. 

704.  Can  not  change  the  issues. 

ON    APPEAL    FROM    JUSTICE    OF    THE 
PEACE. 

705.  Kule  the  same  as  in  other  cases. 

706.  By  supplemental  pleading. 

EFFECT    OF    AMENDMENT. 

707.  Waives   ruling   on   demurrer   to 

original  pleading. 


708.  When  will  entitle  opposite  party 

to  a  continuance. 

709.  When  the  jury  must  be  re-sworn. 
•  710.   When  is  the  commencement  of  a 

new  action. 

711.  Amended  pleading  takes  place  of 

original. 

ON  WHAT    TERMS    LEAVE    TO    AMEND 
GRANTED. 

712.  Costs. 

HOW   OBJECTION   TO   AMENDMENT 
MADE. 

713.  No  affidavit  necessary. 

AMENDMENT    OF    RECORDS. 

714.  During  the  term. 

715.  May  be  made  without  notice. 

716.  After  the  term. 

717.  Application  must  be  by  motion. 

718.  Notice  must  be  given. 

719.  May  be  made  after  appeal. 

OF    BILLS   OF    EXCEPTIONS. 

720.  Can  not  be  corrected  by  parol  ev- 

idence alone. 

OF  PROCESS. 

721.  The  summons. 


XXIV 


CONTENTS. 


7±2.  Executions. 

723.  Officer's  return. 

VARIANCE  AND    FAILURE    OF    PROOF. 

724.  Variance. 

725.  Variance  and  failure  of  proof  dis- 

tinguished. 
7'26.  Material     only     when     opposite 


party   shows   by    affidavit   that 
he  has  been  misled. 

727.  When  will  be  deemed  amended  in 

supreme  court. 

728.  How   question    of    the    right    to 

amend  raised. 

729.  Description    of     written     instru- 


ments. 


CHAPTER  XIX. 


THE  TRIAL 

730.  Trial  defined. 

ISSUES. 

731.  Generally. 

732.  Order  of  forming  issues. 

ISSUES    OF    LAW. 

733.  How  raised  and  tried. 

ISSUES   OF   FACT. 

734.  Raised  by  answer  and  reply. 

735.  By    answer    in    abatement    first^ 

tried. 

736.  May  be  waived. 

WHEN     CAUSE     MAY     BE    CALLED     FOR 
TRIAL. 

737.  At  first  term ;  exception. 

CONTINUANCE. 

738.  Generally. 

739.  Absence  of  evidence. 

740.  Evidence  must  be  material. 

741.  Must  show  due  diligence. 

742.  The  name  and   residence  of  the 

witness. 

743.  Probability  of  procuring  the  tes- 

timony. 

744.  That  the  facts  can  not  be  proved 

by  any  other  wilne— . 

745.  The  facts  to  which  he  believes  the 

witness  will  testify,  and  that  he 
believes  them  to  be  true. 

746.  Competency  of  the  witness. 

747.  If  opposite  party  will  admit  that 

the  witness  will  testify  to  the 
facts,  or,  if  it  is  documentary 
evidence,  that  it  is  true,  contin- 
uance will  not  be  granted. 


480 

748.  On   account  of  the  absence  of  a 

party. 

749.  On  account  of  the  absence  of  an 

attorney. 

750.  Who  may  make  the  affidavit. 

751.  On  suppression  of  depositions,  or 

filing  same  too  late. 

752.  Second   application   during  same 

term. 

753.  Affidavit  may  be  amended. 

754.  For  process. 

755.  For  answers  to  interrogatories. 

756.  Defendant     constructively    sum- 

moned. 

TRIAL    BY    JURY. 

757.  Number  of  jurors. 

HOW  SELECTED. 

758.  Regular  panel. 

759.  Special  venire. 

760.  Special  jury. 

761.  Struck  jury. 

762.  Talesmen. 

763.  Qualification  of  jurors. 

764.  Juror  must  be  disinterested. 

765.  Having  formed   or  expressed  an 

opinion. 

766.  Public  interest. 

CHALLENGES. 

767.  For  cause. 

768.  Peremptory  challenges. 

769.  Challenge  to  the  array. 

770.  Challenge  to   the  poll    or  to    the 

array  must  be  made  before  the 
jury  is  sworn. 

771.  Discharge  of  competent  juror. 


CONTENTS. 


XXV 


772.  Examination  of  juror   as   to   his 

competency. 

773.  Juror  having  suit  in  court. 

774.  Swearing  the  jury. 

775.  Mental    and    physical    qualifica- 

tions. 

776.  Persons  exempt   from  service  as 

jurors. 

OPEN    AND    CLOSE. 

777.  Party  having  the  burden  of  the 

issue  entitled  to  begin. 

778.  The  opening  statement. 

779.  The  evidence. 

780.  The  closing  argument. 

INSTRUCTIONS. 

781.  Special  instructions. 

782.  May   be   modified,  but   not   ver- 

bJlly. 

783.  When  proper  instructions   asked 

may  be  refused. 
?84.  General  instructions. 

785.  Must    be    in    writing   when    re- 

quested. 

786.  Error  to  give  any  part  of  instruc- 

tions  orally,  over   request  that 
they  be  in  writing. 

787.  Must  be  applicable  to  the  issues 

and  the  evidence. 

788.  Must  not  assume  a  fact  to  be  true. 

789.  When  the  court  may  instruct  the 

jury  to  find  for  either  party. 

790.  Additional   instructions    may   be 

given  where  the  jury  disagrees. 

791.  Instructions  must  be  numbered. 

792.  Must  be  settled  before  the  argu- 

ment, when  requested. 

793.  When      erroneous       instructions 

harmless. 

794.  How  erroneous  instructions  cured. 

EXCEPTIONS    TO    INSTRUCTIONS. 

795.  When  must  be  taken. 

796.  How  to  be  taken. 

797.  The  jury  may  view  property  or 

place. 

798.  The    jury    must     be    cautioned, 

when  allowed  to  separate. 


799.  What   papers   may  be   taken   to 

the  jury  room. 

800.  Polling  the  jury. 

801.  When  the  jury  may  be  discharged. 

TRIAL    BY    THE    COURT. 

802.  Governed  by  same  rules  as  trial 

by  jury. 

803.  Special  finding. 

804.  Must  be  at  the  request  of  one  or 

both  of  the  parties. 

805.  Must  be  in  writing,  and  should  be 

signed  by  the  judge. 

806.  Must   contain   the    facts  not  evi- 

dence. 

807.  Must  contain  all  the*  facts  neces- 

sary to  a  recovery. 

808.  Only     facts     within     the     issues 

should  be  included  in  the  find- 
ing. 

809.  Exception  must  be  to  the  conclu- 

sions  of  law. 

810.  Does  not  waive  motion    for  new 

trial  or  for  a  venire  de  novo. 

TRIAL    BY    AQREED    CASE. 

811.  The  statute. 

812.  Affidavit    necessary   to  give   the 

court  jurisdiction. 

813.  Statement  of  facts  must  show  a 

cause  of  action.         « 

TRIAL    BY    REFEREES. 

814.  What  may  be  referred. 

815.  How  referees  selected. 

816.  The  trial  conducted  the  same  as  a 

trial  by  the  court. 

817.  Nature  and  effect  of  referees'  re- 

port. 

818.  How  exceptions  must  be  taken. 

819.  Objections  to  the  report. 

820.  Referees'  duties  end  with  the  re- 

port. 

TRIAL    BY    MASTER    COMMISSIONER. 

821.  Generally. 

WHAT  CAUSES  ARE    TRIABLE    BY  JUBY. 

822.  The  statute. 


XXVI 


CONTENTS. 


WHAT  CAUSKS  WEKK  TRIABLK  BY  JURY 
UNDER  THE  CODE  OF  1852. 

823.  Civil  actions. 

824.  Causes  in  which  the  right  of  trial 

by  jury  has    been   held   not  to 
exist. 

825.  Causes  that  have  been  held  to  be 

triable  by  jur}-. 

CAUSES  TRIABLE  EXCLUSIVELY  BY 
COURTS  OF  CHANCERY,  PRIOR  TO 
JUNE  18,  1852. 

826.  General  discussion. 

827.  Causes  enumerated. 


HOW    JURY    TKIAL    MAY    BK    WAIVED. 

828.  The  statute. 

829.  When  jury  waived  by  failure  to 

appear. 

830.  What  will  amount  to  oral  consent 

entered  of  record. 

DISMISSAL    OF    ACTION. 

831.  When  action  may  be  dismissed. 

832.  Dismissal  in  vacation. 

833.  By  the  court. 

834.  Effect  of  dismissal;   stay  of  pro- 

ceedings   in    second   action    for 
payment  of  costs. 

835.  Set-off;  counterclaim. 


CHAPTER  XX. 


VERDICT?., 


54: 


836.  Is  general  or  special. 

GENERAL   VERDICT, 

837.  Form. 

838.  On  several  issues. 

839.  May  be  amended. 

840.  Sealed  verdict. 

841.  When  and  how  returned. 

842.  Must  be  in  writing  and  signed. 

843.  When  becomes  part  of  the  record. 

844.  Compromise  or  chance  verdict. 

845.  Set-off;  counterclaim. 

VERDICTS    IN    PARTICULAR   CASES. 

846.  Replevin. 

847.  In  highway  cases.    . 

848.  Verdict   for   more    than    amount 

asked  for  in  the  complaint. 

SPECIAL    VERDICT. 

849.  When  may  be  returned. 

850.  May   be   returned    with    general 

verdict. 

851.  What  must  find. 


852.  Draft    may  be   prepared    by   the 

parties. 

INTERROGATORIES. 

853.  Must  be  submitted  at  the  request 

of  either  party. 

854.  When  request  to  submit  must  be 

made. 

855.  Form. 

856.  Evidence;  conclusions  of  law. 

857.  Must  be  as  to  a  material  fact. 

858.  Must    be    fully    and    fairly    an- 

swered. 

859.  Request  for  waives  special  verdict. 

860.  Each  answer  must  be  signed. 

861.  When    answers   control    general 

verdict. 

862.  Can   only   be   returned   with  the 

general  verdict. 

863.  Can  not  be  withdrawn  from  the 

jury- 

864.  Motion  for  judgment  on. 

865.  When   treated  as  a  special  ver- 

dict. 


CHAPTER  XXI. 

NEW  TRIAL — VENIRE  DE  Novo 


504 


NEW    TRIAL. 

866.  The  statute. 


THE    MOTION. 

867.  Must  be  in  writing. 


CONTENTS. 


XX  VI I 


868.  When  must  be  filed. 

£69.  Must  point  out  the  errors  com- 
plained of  with  reasonable  cer- 
tainty. 

870.  Truth  of  causes  must  be  shown 

by  bill  of  exceptions. 

871.  When  must  be  verified. 

872.  Joint  motion. 

873.  In  attachment  proceedings. 

874.  Is  part  of  the  record. 

875.  Successive  motions. 

876.  Must  be  granted  as  to  the  whole 

case. 

CAUSES    FOB    NEW    TRIAL. 

1.  Irregularity  in  the  proceedings  of 

the  court,  jury,  or  prevailing 
party,  or  any  order  of  court  or 
abuse  of  discretion  by  which  the 
party  was  prevented  from  having 
a  fair  trial. 

877.  What  embraced  in  this  specifica- 

tion. 

878.  Irregularity   in   the   proceedings 

of  the  court. 

879.  Continuance. 

880.  Change  of  venue. 

881.  Depositions. 

882.  Interrogatories  to  party. 

883.  Dismissal  of  appeal. 

884.  Orders  of  court ;  abuse  of  discre- 

tion. 

885.  Irregularity  of  the  jury   or  pre- 

vailing party. 

2.  Misconduct  of  the  jury  or  prevailing 

party. 

886.  Of  the  jury  must   be   gross  and 

injurious. 

887.  Drinking  intoxicating  liquors. 

888.  Communicating   with   other  per- 

sons. 

889.  Presence  in  the  jury  room  of  of- 

ficer in  charge. 

890.  Separation  of  the  jury. 

891.  Viewing  the  premises. 

892.  Taking  notes  of  the  evidence. 

893.  Taking  out  papers. 

894.  Furnishing  law  to  the  jury. 

895.  Compromise  verdict. 


896.  Communications    between    court 

and  jury. 

897.  Misconduct  of  prevailing  party. 

3.  Accident  or  surprise  which  ordinary 
prudence  could  not  have  guarded 
against. 

898.  How  assigned. 

899.  At  the  evidence  of    the  adverse 

party. 

900.  At  the  testimony  of  his  own  wit- 

nesses. 

901.  Other  grounds  of  surprise. 

902.  Diligence  must  have  been  used  to 

avoid  surprise. 

903.  Must  have  caused  injury. 

4.  Excessive  damages. 

904.  Applies  to  actions"  for  tort. 

905.  Can  not  be  assigned  as  error. 

906.  Damages  must  be  grossly  exces- 

sive. 

907.  Omission  to  assess  nominal  dam- 

ages. 

908.  Kemittitur. 

5.  Error    in    the    assessment    of    the 

amount  of   recovery,  whether  too 
large  or  too  small. 

909.  What  included  within  this  specifi- 

cation. 

910.  When  cause  will  be  reversed  on 

ground   that   assessment   is  too 
large. 

911.  Finding   for  more   than   amount 

claimed  in  complaint. 

912.  Where  there  is  a  demurrer  to  the 

evidence. 

913.  Amount  of  recovery  too  small. 

6.  That  the  verdict  is  not  sustained  by 

sufficient  evidencew  is  contrary  to 
law. 

914.  Not   sustained   by  sufficient   evi- 

dence. 

915.  Rule  in  the  supreme  court. 

916.  Verdict  contrary  to  law. 

917.  All  of  the  evidence  must  be  in  the 

record. 


XX  VI 11 


CONTENTS. 


7.  Newly-diseovered  evidence. 

918.  "What  must  be  shown  under  this 

specification. 

919.  That  the  evidence  has  been  dis- 

covered since  the  trial. 

920.  Diligence  used  to  procure  the  evi- 

dence. 

921.  Evidence  must  be  material. 

922.  Cumulative  evidence. 

923.  Impeaching  evidence. 

924.  Evidence  must  probably  produce 

a  different  result. 

925.  Affidavits   of  party  and  witness 

necessary. 

926.  Evidence  must  be  in  the  record. 

8.  Error  of  law  occurring  at  the  trial. 

927.  Generally. 

928.  Causes  enumerated. 

929.  Admission   or   exclusion   of    evi- 

dence. 

930.  Giving   or   refusing    to   give   in- 

structions. 

931.  Question  of  law  reserved. 

ERRORS    NOT    GROUND    FOR  NEW  TRIAL. 

932.  Enumerated. 

HOW  MOTION  FOR  NEW  TRIAL  WAIVED. 

933.  By  moving  in  arrest  of  judgment. 

934.  By  failing  to  except  at  the  time. 

935.  Not  waived   by  motion  for  a  ve- 

nire de  novo. 

936.  Nor  by  motion  for  judgment  on 

special  findings. 

ERROR     IN    GRANTING    OR    OVERRULING 
THE   MOTION. 

937.  New  trial  granted. 

938.  New  trial  refused. 

939.  Exception  must  be  taken  at  the  time 

940.  When  appeal  taken  from  ruling 

on  the  motion. 

941.  Default;  can  be  no  new  trial. 

942.  Effect  of  consent  of  parties. 

TERMS  OF  GRANTING  NEW  TRIAL. 

943.  Costs. 

944.  Can  not  be  granted  on  condition. 

945.  Costs  can  not  be  recovered  back. 


946.  Effect  of  granting  new  trial. 

AFFIDAVITS     IN    SUPPORT    OF    THE    MO- 
TION. 

947.  Proof  how  made. 

948.  Witness  compelled  to  make  affi- 

davit. 

949.  Juror's  affidavit. 

950.  Determined  by  the  weight  of  the 

evidence. 

NUMBER  OF  NEW   TRIALS. 

951.  Unlimited. 

COMPLAINT  FOR  NEW  TRIAL. 

952.  The  statute. 

953.  When  must  be  filed. 

954.  The  pleadings. 

955.  The  complaint. 

956.  The  parties. 

957.  Demurrer. 

958.  The  trial. 

959.  Appeal. 

NEW  TRIAL  AS  OF    RIGHT. 

960.  The  statute. 

961.  In  what  causes  may  be  granted. 

962.  The  motion. 

963.  Undertaking  must  be  given  and 

new   trial   granted    within    one 
year. 

964.  The  undertaking. 

965.  The  notice. 

966.  The  evidence. 

967.  Appeal. 

968.  Effect  of  order  granting. 

969.  Default ;  can  be  no  new  trial  as  o 

right. 

VENIRK  DE  NOVO 

970.  Defective  verdict. 

971.  Failure  to  find  the  whole  issue. 

972.  Finding  the  evidence  or  conclu- 

sions of  law. 

973.  Imperfect  answers  to  special  in- 

terrogatories. 

974.  Motion    must     be    made     before 

judgment. 
OTA.   Appeal. 


CONTENTS. 


CHAPTER  XXII. 
JUDGMENT 0:25 


SECTION. 

976.  Defined. 

977.  Classification. 

978.  Final  judgments. 

979.  Interlocutory  judgments. 

'.ISO.  Different    modes    of     obtaining 
judgment. 

1.    IN  ACTIONS  COMMENCED  BY  TRUCKS*. 

981.  On  general  verdict. 

982.  On  issue  formed  in  abatement. 

983.  On  special  verdict. 

984.  On  special  findings  and  conclu- 

sions of  law. 

985.  On  answer  to  special  interroga- 

tories. 

986.  On  the  pleadings. 

987.  On  demurrer. 

988.  Where  plaintiff  is  barred  as  to 

part  of  the  defendants. 

989.  Against  part  of  plaintiffs  or  de- 

fendants. 

990.  In  actions  of  ejectment. 

991.  Where  there  is  a  set-off. 

992.  Judgment  on  default. 

993.  On  constructive  notice. 

994.  Judgment  in  rem  may  be  opened 

in  five  years. 

995.  Judgment  without  notice. 

996.  Judgment  without  defaulting  the 

defendant. 


2.    IN       AN       ACTION       COMMENCED       BY       1021. 
AGREEMENT. 

997.  Agreed  case.  1022. 

998.  Judgment  bv  agreement. 


3.    BY  CONFESSION  WITHOUT  AN  ACTION. 

999.  Offer  to  allow  judgment. 
1000.  Offer  to  confess  judgment 


SKCTION. 

1001.  Confession  of  judgment. 

1002.  Confession  by  attorney. 

1003.  The  judgment. 

KoKM    OK    JUDGMENT. 

1004.  Generally. 

1005.  Arbitration  and  award. 

1006.  Attachment. 

1007.  Bastimly. 

1008.  Against    executors,    administra- 

tors and  guardians. 

1009.  Foreclosure  of  mortgages. 

1010.  Vendors'  liens. 

1011.  Airainst  heirs  for  debt  of  ances- 

tor. 

1012.  Judgment  without  relief. 

1013.  Against  public  officers  and  others 

acting  in  a  fiduciary  capacity 
— without  relief  or  stay. 

1014.  On  bonds,  written  undertakings 

and  recognizances. 

JUDGMENT  FOR  COSTS. 

1015.  Recovered  in  civil  actions. 

1016.  Exceptions — recovery  under  fifty 

dollars. 

1017.  In  actions  for  damages  solely. 

1018.  Relators  liable  for  costs. 

1019.  When  apportioned. 

1020.  Where  suits  can  be  joined — costs 

in  one  only. 

On  appeal  from  justice  of  the 
peace. 

On  offer  ti>  allow  or  confess  judg- 
ment. 

1023.  Claims  against  estates. 

1024.  Disclaimer. 

1025.  Reversal  by  supreme  court. 

1026.  Adjudged  before  final  judgment 


XXX 


CONTENTS. 


PECTION. 

1027.  Belongs  to  the  party  recovering 

judgment. 

1028.  Security  for  costs. 

3029.  Form  of  judgment  for  costs. 

HOW  DEFECT  IN  FORM  REACHED. 

1030.  By  motion  in  the  court  below. 

1031.  Correcting  judgments. 

1032.  How    judgment     entered      and 

signed. 

EFFECT  OF  JUDGMENT'. 

1033.  Merges  the  cause  of  action. 

1034.  The  lion. 

1035.  Judgment  docket. 

1036.  Transcript  to  bind  real  estate. 

1037.  Transcript    of    justice    of      the 

peace. 

1038.  When  conclusive — collateral  at- 

tack. 

1039.  Effect    of    appeal     from    judg- 

ment. 

REPLEVIN    BAIL. 

1040.  The  statute. 

1041.  Is  a  judgment  confessed. 

1042.  What  judgments  repleviable. 

1043.  How  entered. 

1044.  Where  part  of  judgment   cred- 

itors are  sureties. 

ARREST  OF  JUDGMENT. 

1045.  For  what  causes  judgment  may 

be  arrested. 

1046.  Goes  to  the  whole  complaint. 

1047.  The  motion. 

1048.  Effect  of  arresting  judgment. 


SECTION. 

REVIEW  OF  JUDGMENTS. 

1049.  Causes  for  review. 

1050.  The  parties. 

1051.  The    pleadings — complaint     for 

error  of  law. 

1052.  The  trial. 

1053.  The  bond. 

1054.  The  judgment. 

1055.  When  proceeding  to  review  al- 

lowed. 

1056.  Effect  of  review. 

VACATING    JUDGMENTS. 

1057.  How  and  for  what  causes. 

SATISFACTION  OF  JUDGMENTS. 

1058.  By  lapse  of  time. 

1059.  By  payment. 

1060.  By  levy  of  execution. 

1061.  By  the  sale  of  property. 

1062.  Entry   of    payment,    release   or 

satisfaction. 

1063.  Action  to  compel  an  entry  of  sat- 

isfaction. 

REVIVOR  OF   JUDGMENTS. 

1064.  Leave   to   issue  execution    after 

ten  years. 

1065.  By  or  against  executors  and  ad- 

ministrators unnecessary. 

1066.  Kevivor  upon  death  of  judgment 

defendant. 

1067.  Defenses  in  actions  to  revive 

ACTIONS  ON  JUDGMENTS. 

1068.  Are  debts  of  record,  and  mav  be 

collected  by  suit. 

1069.  Di fences. 


OP   INDIANA    CODE    OF    1852    AND    REVISED    STATUTES    OP    1881. 


Old  Code. 


Rev.  Stat 
§249 
250 

Old  Code. 
§  50 
51 

Rev.  Stat. 
§  339 
340 

Old  Code. 
§  99 
100 

Rev.  Stat. 
§396 
397 

251 

52 

341 

101 

398 

252 

53 

342 

102 

399 

281 

54 

343 

103 

856 

276 

55 

344 

104 

857 

253 

56 

347 

105 

858 

254 

57 

348 

106 

859 

Repealed 
255 

58 
59 

349 
350 

107 
108 

860 
861 

256 

60 

351 

109 

862 

257 

61 

352 

110 

863 

258 

62 

354 

111 

864 

259 

63 

277 

111 

865 

260 

64 

346 

113 

866 

261 

65 

355 

114 

867 

262 

66 

356 

115 

868 

268 

67  • 

357 

116 

869 

269 

68 

400 

117 

870 

270 

69 

401 

118 

871 

271 

70 

278 

119 

872 

272 

71 

279 

120 

873 

273 

72 

280 

121 

874 

263 

73 

358 

122 

875 

264 

74 

383 

123 

876 

265 

75 

360 

124 

877 

266 

76 

361 

125 

878 

307 

77 

382 

126 

879 

308 

78 

362 

127 

880 

309 

79 

363 

128 

1266 

310 

80 

364 

129 

1267 

311 

81 

366 

130 

1268 

312 

82 

368 

131 

1269 

314 

83 

369 

132 

1270 

315 

84 

370 

133 

1271 

316 

85 

371 

134 

1272 

317 

86 

372 

135 

1273 

318 

87 

373 

136 

1147 

319 

88 

374 

137 

1148 

318,  sub.  4,  5 
320 

89 
90 

375 
376 

138 
139 

1149 
1150 

322 

91 

377 

140 

1151 

600 

92 

378 

141 

1152 

601 

93 

379 

142 

1153 

602 

94 

391 

143 

1154 

335 

95 

392 

144 

1155 

336 

96 

393 

145 

1156 

337 

97 

394 

146 

1157 

838 

118 

395 

147 

1158 

(xxxi) 

XXX11 


PARALLEL    SECTIONS. 


Old  Code. 
§148 
149 

Rev.  Stat. 
§1159 
1160 

Old  Code. 
§209 
210 

Rev.  Stat. 
§417 
292 

Old  Code. 
§270 
271 

Rev.  Stat. 
§443 
446 

150 

1161 

211 

293 

272 

447 

151 

1162 

212 

294 

273 

450 

152 

1163 

213 

295 

274 

451 

153 

1164 

214 

367 

275 

452 

154 

1165 

215 

296 

276 

453 

155 

1166 

216 

297 

277 

456 

156 

913 

217 

298 

278 

457 

157 

914 

218 

299 

279 

458 

158 

915 

219 

300 

280 

459 

159 

916 

220 

301 

281 

460 

160 

917 

221 

302 

282 

461 

161 

918 

222 

567 

283 

462 

162 

919 

223 

303 

284 

467 

163 

920 

224 

304 

285 

468 

164 

921 

225 

305 

286 

472 

165 

922 

226 

267 

287 

473 

166 

923 

227 

306 

288 

474 

167 
168 

Repealed 
924 

228 
229 

.Repealed 

484 

289 
290 

475 

476 

169 

925 

230 

487 

291 

477 

170 

926 

231 

488 

292 

481 

171 

927 

232 

489 

293 

483 

172 
173 

928 
929 

233 
234 

490 
491 

294 
295 

Repealed 
509 

174 

930 

235 

492 

296 

510 

175 

931 

236 

494 

297 

511 

176 

932 

237 

495 

298 

512 

177 
178 
179   - 
180 
181 

933 
934 
935 
93(5 
937 

238 
239 
240 
241 
242 

Repealed 
Repealed 
Repealed 
Repealed 
505 

299 
300 
301 
302 
303 

513 
Repealed 
Repealed 
Repealed 
359 

182 

938 

243 

506 

304 

478 

183 

9S9 

244 

507 

305  . 

479 

184 

940 

245 

418 

306 

480 

185 

941 

246 

419 

307 

520 

186 

943 

247 

420 

308 

521 

187 

944 

248 

421 

309 

523 

188 

945 

249 

422 

310 

524 

189 

946 

250 

423 

311 

529 

190 

947 

251 

424 

312 

530 

191 

948 

252 

425 

313 

531 

192 

949 

253 

426 

314 

532 

193 

950 

254 

427 

315 

516 

194 

951 

255 

428 

316 

406 

195 

952 

256 

429 

317 

407 

196 

95  ;5 

257 

430 

318 

408 

197 

954 

258 

431 

319 

517 

198 

955 

259 

432 

320 

401) 

199 

1222 

260 

433 

321 

518 

200 

1223 

261  ' 

434 

322 

410 

201 

1224 

262 

435 

323 

411 

202 
203 

1225 
1226 

263 
264 

436 
437 

324 
325 

5J:i 
535 

204 

1227 

265 

438 

326 

536 

205 

1228 

266 

439 

327 

537 

206 

1229 

267 

440 

328 

538 

207 

412 

268 

441 

329 

539 

208 

413 

269 

442 

330 

540 

PARALLEL    SECTIONS. 


xxxn 


Old  Code. 

Rev.  Stat.  |  Old  Code. 

Rev.  Stnt. 

Old  Code. 

§331 

§541 

§  392 

§387 

§453 

332 

542 

393 

388 

454 

333 

543 

394 

389 

455 

334 

644 

896 

390 

456 

335 

545 

396 

590 

457 

336 

546 

397 

591 

458 

337 

547 

398 

592 

459 

338 

548 

399 

593 

460 

339 

549 

400 

594 

461 

340 

550 

401 

595 

462 

341 

551 

402 

689 

463 

342 

625 

403 

596 

464 

343 

626 

404 

599 

465 

344 

627 

405 

674 

4G6 

345 

628 

406 

675 

467 

346 

629 

407 

679 

468 

347 

630 

408 

676 

469 

348 

631 

409 

680 

470 

349 

556 

410 

681 

471 

350 

557 

411 

682 

'472 

351 

658 

412 

683 

473 

352 

659 

413 

686 

474 

353 

660 

414 

609 

475 

354 

561 

415 

779 

476 

355 

662 

416 

780 

477 

356 

563 

417 

684 

478 

357 

652 

418 

685 

479 

358 

402 

419 

687 

480 

359 

Repealed 

420 

690 

481 

360 

403 

421 

691 

482 

361 

404 

422 

692 

483 

362 

323 

423 

693 

484 

363 

333 

424 

694 

485 

364 

334 

425 

695 

486 

365 

353 

426 

696 

487 

366 

570 

427 

697 

488 

367 

673 

428 

698 

489 

368 

668 

429 

699 

490 

369 

669 

430 

700 

491 

370 

664 

431 

701 

492 

371 

665 

432 

702 

493 

372 

666 

433 

719 

494 

373 

571 

434 

720 

495 

374 

672 

435 

721 

496 

375 

384 

436 

722 

497 

376 

679 

437 

723 

498 

377 

680 

438 

724 

499 

378 

674 

439 

725 

500 

379 

575 

440 

726 

501 

380 

385 

441 

727 

502 

381 

576 

442 

728 

503 

382 

345 

443 

729 

504 

383 

586 

444 

730 

605 

384 

687 

445 

732 

506 

385 

688 

446 

733 

507 

386 

5-33 

447 

734 

608 

'387 

554 

448 

735 

509 

888 

555 

449 

736 

510 

389 

614 

450 

737 

611 

390 

615 

451 

738 

612 

391 

380 

452 

739 

613 

Rev.  Pint. 
§  740 
741 
742 
748 
744 
745 
746 
747 
748 
749 
753 
7.34 
755 
756 
757 
750 
751 
731 
688 
763 
764 
758 
759 
760 
761 
781 
762 
782 
783 
784 
785 
780 
787 
788 
789 
790 
791 
792 
793 
794 
795 
796 
797 
798 
799 
800 
801 
802 
803 
804 
805 
806 
807 
808 
809 
810 
811 
812 
813 
814 
682 


XXXIV 


PARALLEL    SECTIONS. 


Old  Code. 

Rev.  Stat. 

Old  Code. 

Rev.  Stat. 

O1<1  Code. 

Rev.  Stat. 

§514 

§583 

§  575 

§659 

§  636 

§1101 

515 

584 

576 

646 

637 

1102 

516 

585 

577 

647 

638 

1103 

517 

677 

578 

648 

639 

1104 

518 

815 

579 

666 

640 

1105 

519 

816 

580 

658 

641 

321 

520 

817 

581 

657 

642 

621 

521 

818 

582 

656 

643 

622 

522 

819 

583 

654 

644 

623 

523 

820 

584 

653 

645 

624 

524 

821 

585 

668 

646 

Repealed 

525 

822 

586 

615 

647 

5293 

526 

752 

587 

616 

648 

5294 

527 

608 

588 

617 

649 

5295 

528 

610 

589 

618 

650 

5296 

529 

611 

590 

619 

651 

5297 

530 

464 

591 

620 

652 

5298 

531 

1220 

592 

1050 

653 

5299 

532 

689 

593 

1051 

654 

5300 

533 

669 

594 

1053 

655 

5277 

534 

670 

595 

1054 

656 

5278 

535 

•  671 

596 

1055 

657 

5279 

530 

672 

597 

1056 

658 

5280 

537 

673 

598 

1058 

659 

52.S1 

538 

2364 

599 

1059 

660 

5282 

539 

612 

600 

1060 

661 

5283 

540 

613 

601 

1064 

662 

5284 

541 

614 

602 

1065 

663 

5285 

542 

1015 

603 

1066 

664 

1178 

543 

1016 

604 

1067 

665 

1179 

544 

1017 

605 

1052 

666 

1180 

545 

1018 

606 

1057 

667 

1181 

546 

1019 

607 

1068 

668 

1182 

547 

1020 

608 

1069 

669 

1183 

548 

1021 

609 

1061 

670 

1184 

549 

1022 

610 

1062 

671 

1185 

550 

632 

611 

1070 

.672 

I'JIO 

551 

635 

612 

1071 

673 

1211 

552 

636 

613 

1072 

674 

1212 

553 

637 

614 

1063 

675 

1213 

554 

Repealed 

615 

1074 

676 

1214 

555 

638 

616 

1075 

677 

1215 

556 

640 

617 

1076 

678 

1216 

557 

651 

618 

1077 

679 

1217 

658 

649 

619 

1078 

680 

1218 

559 

650 

620 

1079 

681 

313 

560 

652 

621 

1080 

682' 

Repealed 

661 

633 

622 

1081 

683 

881 

562 

634 

623 

1082 

684 

883 

563 

641 

624 

1083 

685 

884 

564 

642 

625 

1084 

686 

885 

565 

643 

626 

Repealed 

687 

886 

566 

644 

627 

286 

688 

887 

667 

645 

628 

289 

689 

888 

668 

655 

629 

290 

690 

889 

669 

661 

630 

291 

691 

890 

570 

660 

631 

101)5 

692 

891 

671 

662 

632 

1096 

693 

892 

572 

663 

633 

1097 

694 

893 

573 

664 

634 

1099 

695 

894 

574 

665 

635 

1100 

696 

895 

PARALLEL   SECTIONS. 


XXXV 


Old  Code. 

Rev.  Stat.  1  Old  Code. 

Rev.  Stat.   Old  Code. 

Rev.  Stat. 

?697 

§896 

§733 

§1127 

§769 

§965 

698 

897 

734 

1128 

770 

966 

699 

898 

735 

1129 

771 

967 

700 

899 

736 

1130 

772 

968 

701 

900 

737 

1107 

773 

969 

702 

901 

738 

1167 

774 

970 

703 

902 

739 

1168 

775 

971 

704 

903 

740 

1169 

776 

972 

705 

904 

741 

1170 

777 

973 

706 

905 

742 

1171 

778 

974 

707 

906 

743 

1172 

779 

975 

708 

907 

744 

1173 

780 

976 

709 

908 

745 

1174 

781 

977 

710 

909 

746 

1175 

782 

282 

711 

910 

747 

1176 

783 

283 

712 

911 

748 

1177 

784 

284 

713 

912 

749 

1131 

785 

360 

714 

1106 

750 

1132 

786 

274 

715 

1108 

751 

1133 

787 

1280 

716 

1109 

752 

1134 

788 

285 

717 

mi* 

753 

1135 

789 

1281 

718 

1112 

754 

1136 

790 

1221 

719 

1113 

755 

1137 

791 

275 

720 

1114 

756 

1138 

792 

482 

721 

1115 

757 

1139 

793 

1332 

722 

1116 

758 

1140 

794 

Repealed 

723 

1117 

759 

1141 

795 

1282 

724 

1118 

760 

1142 

796 

Repealed 

725 

1119 

761 

1143 

797 

1285 

726 

1120 

762 

1144 

798 

1286 

727 

1121 

763 

1145 

799 

1287 

728 

1122 

764 

1146 

800 

1288 

729 

1123 

765 

961 

801 

1289 

730 

1124 

766 

962 

802 

Repealed 

731 

1125 

767 

903 

803 

1290 

732 

1126 

768 

964 

INDIANA   PRACTICE. 


CHAPTER   I. 

COURTS   OF    INDIANA. 

SECTION .  SECTION 

1.  The  constitution  and  statutes.  3.  Courts  now  existing. 

2.  Criminal  circuit  courts;  act  creating  constitutional. 

I.  The  constitution  and  statutes. — The  constitution  provides 
that  the  judicial  power  of  the  state  shall  be  vested  in  a  supreme  court, 
in  circuit  courts,  and  in  such  other  courts  as  the  general  assembly  may 
establish.11 

Under  the  constitution  as  originally  adopted  the  right  of  the  legis- 
lature to  establish  other  courts  was  limited  to  courts  inferior  to  the  cir- 
cuit court  ;b  but  this  section  was  amended  in  1881  so  that  the  power  to 
establish  other  courts  is  not  thus  limited.0 

Under  the  original  section  of  the  constitution  common  pleas  courts 
were  established  by  the  legislature  and  given  concurrent  jurisdiction 
with  the  circuit  courts  in  certain  cases,  and  exclusive  jurisdiction  in 
certain  other  cases.  But  of  late  years  it  seems  to  have  been  the  policy 
of  our  law-makers  to  reduce  the  number  of  courts  in  the  state.  With 
this  view  an  act  was  passed  in  1873  by  which  the  common  pleas  court 
was  abolished,  and  the  business  thereof  transferred  to  the  circuit 
courts.d 

By  this  act  most  of  the  counties  of  the  state  were  left  with  but  one 
court  of  general  jurisdiction. 

In  1865,  an  act  was  passed  providing  for  the  organization  of  crimi- 
nal circuit  courts,  and  on  the  same  day  an  act  creating  a  criminal  cir- 
cuit court  in  the  county  of  Marion  was  passed.6 

By  an  act  approved  March  11,  1867,  the  act  above  referred  to  was 

(a)  Const,  of  Indiana,  art.  7,  §  1 ;  R.        (c)  R.  S.  1881,  §  161. 

S.  1881,  §  161 ;    Clem  v.  The  State,  33         (d)  1  R.  S.  1876,  p.  390,  §  79. 
Ind.  418  ;  Ex  parte  Wiley,  39  Ind.  546.         (e)  1  R.  S.  1876,  p.  391,  chap.  90. 

(b)  1  R.  S.  1876,  p.  36,  \  1. 

(1) 


2  COURTS   OF   INDIANA.  [CHAP, 

amended  by  creating  criminal  courts  in  each  of  the  counties  of  Allen  and 
Tippecauoe/ 

By  an  act  approved  March  1,  1869,  a  criminal  circuit  court  was  es- 
tablished in  the  county  of  Vigo.g 

Criminal  circuit  courts  were  established  in  the  counties  of  Floyd  and 
Clark  in  1869.h  %  And  in  the  counties  of  Vanderburgh  and  Jefferson  in 
the  same  year.' 

2.  Criminal  circuit  courts  ;  acts  creating  constitutional. 
— When  the  first  of  the  acts  creating  the  criminal  circuit  in  Marion 
county  was  passed  its  constitutionality  was  much  questioned,  but  the 
supreme  court,  in  the  case  of  Combs  v.  The  State,  held  that  the  act  pro- 
viding for  the  organization  of  criminal  circuit  courts  in  all  counties 
having  ten  thousand  voters,  and  the  act  constituting  the  county  of 
Marion  the  sixteenth  judicial  circuit,  were  constitutional^     This  de- 
cision has  been  adhered  to  in  later  cases. k 

In  1871,  an  act  was  passed  providing  for  the  establishment  of  su- 
perior courts  in  any  county  wherein  is  situated  an  incorporated  city 
containing  a  population  of  not  less  than  forty  thousand  inhabitants.1 

3.  Courts   now   existing. — We  have  the  following  courts  in 
Indiana,  including  those  above  named  : 

1.  The  supreme  court; 

2.  The  circuit  court; 

3.  The  superior  court; 

4.  The  criminal  court; 

5.  The  court  of  justices  of  the  peace; 

6.  The  mayor's  court; 

7.  The  commissioner's  court ; 

8.  The  city  court. 

The  court  of  common  pleas  was  abolished  as  a  matter  of  economy, 
but  the  result  has  been  the  reverse  of  that  intended.  In  the  counties 
where  there  is  but  the  one  court,  business  of  all  kinds,  civil,  criminal, 
and  probate,  is  brought  together  within  the  jurisdiction  of  that  court. 
Confusion  and  delay  have  been  the  inevitable  result.  In  this  way, 
and  by  reason  of  the  increase  in  the  number  of  circuits,  and  the  in- 

(f )  IE.  S.  1876,  p.  "93,  chap.  91.  22.  Since  the  constitution  was  amend- 

(g)  1  K.  S.  1876,  p.  394,  chap  92.  ed  authorizing    the    establishment  of 
(h)  1  R  S.  1876,  p.  H96,  chap.  93.  other  courts,  an   act  has  been  passed 
(i)    1  R.  f5.  1876.  p.  398,  chap.  94.  establishing  criminal    courts.  11.  Stat- 
^j)  Combs  v.  The  State,  2<J  Ind   98.  1881,  §'1366. 

(k)  Anderson  v.  The  State,  28  Ind.         (1)    1.  H.  S.  1876.  p.  23. 


I.]  COURTS   OF   INDIANA.  3 

creased  pay  allowed  to  judges  and  prosecuting  attorneys  of  the  circuit 
courts,  the  expense  of  the  judiciary  has  been  largely  increased. 

By  the  act  of  June  1,  1852,  the  state  was  divided  into  ten  circuits.10 
Since  the  act  abolishing  the  common  pleas  court  the  number  of  cir- 
cuits has  been  increased  to  forty." 

(m)  2  R.  S.  1876,  p.  6,  chap.  1.  (n)  Acts  of  1879,  p.  118. 


JURISDICTION.  [CHAP. 


CHAPTER  II. 

JURISDICTION. 

SECTION.  SECTION. 

4.  What  is  jurisdiction.  7.  Constitutional  jurisdiction  can  not 

5.  When  will  be  presumed.  be  taken  away  by  legislature. 

6.  When  question  of  jurisdiction  may  8.  Concurrent   may   be    exercised   by 

be  raised.  court  first  taking  jurisdiction. 

9.  Concurrent  with  courts  of  other  states. 

4.  "What  is  jurisdiction. — Jurisdiction  is  the  power  to  hear  and 
determine  a  cause.* 

5.  "When  will  be  presumed. — The  jurisdiction  of  courts  of  gen- 
eral jurisdiction  will  be  presumed.b     But  this  presumption  may  be  re- 
butted.1 

Nothing  will  be  presumed  in  favor  of  the  jurisdiction  of  inferior 
courts.  Where  the  jurisdiction  of  such  courts  comes  in  question  the 
record  must  affirmatively  disclose  such  a  state  of  facts  as  will  warrant 
the  exercise  of  jurisdiction/  But  when  the  jurisdiction  of  an  inferior 
court  is  once  established,  the  same  presumptions  in  favor  of  its  pro- 
ceedings will  apply  as  would  apply  to  the  acts  of  courts  of  general  juris- 
diction. The  fact  of  jurisdiction  is  not  presumed,  but  after  such  juris- 
diction has  been  affirmatively  shown  to  exist,  it  Avill  be  presumed  that  it 
has  been  properly  exercised  in  the  absence  of  any  showing  to  the  con- 
trary/ 

It  would  seem  to  follow  from  this  rule  that  the  record  of  an  inferior 
court,  when  offered  to  sustain  its  own  jurisdiction,  is  not  conclusive. 
In  the  case  of  The  Board,  etc.,  v.  Markle,  the  court  say:  "Hence  a 

(a)  The  United  States  v.  Arredondo,  133;  The  O.  &  M.  K.  K/Co.  v.  Shultz, 
6  Pet.  U.  S.  691,  709;  Guyman's  Les-  31  Ind.  150;  Porter  v.  Stout,  73  Ind. 
see  v.  Astor,  2  How.  U.  S.  338;  The  3;   Doctor  v.  Hartman,  74  Ind.  221; 
Board,  etc.,  v.  Markle,  46  Ind.  96;  The  Newman  v.  Manning,  89  Ind.  422. 
State  of  R.  I.  v.  The  State  of  Mass.,  12         (d)  Crosby  i>.  O'Brien,  24  Ind.  325; 
Pet.  657.     Lantz  v.  Maffett,  102  Ind.  The   Pendleton,  etc.,  T'p  v.  Barnard, 
23;  Quarl  v.  Abbett,  102  Ind.  233.  40  Ind.  146;    Alexander  v.  The  Mc- 

(b)  Waltz  v.  Borroway,  25  Ind.  380;  Cordville,  etc.,  G.  E.  Co.,  44  Ind.  436 ; 
Houk  v.  Barthold,  73  Ind.  21;  Lee  v.  Cooper  v.   Sutherland,    3   Iowa,   114; 
Templeton,  73  Ind.  315;  Post,  §§  388,  Dempster  v.  Purnell,  3  M.  &  G.  375; 
474.  Cason  v.'  Cason,  31  Miss.  578,  592;  The 

(»)  Warring  v.  Hill,  89  Ind.  497.  Board,  etc.,  .v.  Markle,  46  Ind.  90,  112; 

(c)  The   Board,  etc.,  v.  Markle,  46     Hord  v.  Elliot,  33  Ind.  220;  Argo  v. 
Ind.  96;    Cobb  v.  The  State,  27  Ind.     Barthand,  80  Ind.  63. 


II.]  JURISDICTION.  5 

recital  in  the  record  of  such  facts  may  be  shown  to  be  false,  and  some 
of  the  courts  hold  that  they  are  not  even  prima  facie  evidence  of  the 
truth,  but  they  must  be  proved  by  evidence  aliunde." 

In  the  cases  of  The  State  v.  Elliot  and  Weston  v.  Lumley,  the 
same  court  seems  to  have  taken  a  different  view  of  the  question  as  to 
the  force  of  the  recital  in  the  record.  It  was  expressly  held  in  both 
of  these  cases  that  where  the  jurisdictional  facts  appear  on  the  face 
of  the  record,  the  record  is  conclusive  against  all  collateral  attacks. 

It  certainly  can  not  be  regarded  as  sound  legal  doctrine  that  the 
record  of  an  inferior  court  is  conclusive  as  to  the  question  of  jurisdic- 
tion, even  where  its  jurisdiction  is  attacked  collaterally.  If  the  facts 
necessary  to  such  jurisdiction  do  not  in  fact  exist,  the  court  has  no 
power  to  make  any  such  record  or  to  take  any  step  in  the  cause.  The 
record  would  be  a  nullity.  But  the  authorities  in  this  state  clearly  es- 
tablish the  rule  that  such  a  finding  is  conclusive  against  a  collateral 
attack.6 

6.  When  question  of  jurisdiction  may  be  raised. — It  is 
well  settled  by  authority  that  the  question  of  the  jurisdiction  of  a 
court  may  be  raised  in  a  collateral  proceeding.     But  the  Supreme 
Court  of  Indiana  has  decided  that  "  where  the  jurisdiction  of  an  inferior 
court  depends  on  a  fact  which  said  court  is  required  to  ascertain  and  settle 
by  its  decision,  such  decision  is  conclusive  except  in  a  direct  proceeding  to 
reverse  or  set  aside  the  judgment/    The  finding  of  the  fact  must,  how- 
ever, be  necessary  at  the  time  it  is  so  found  to  evoke  the  exercise  of 
jurisdiction,  and  if  it  is  not  so.  found  it  can  not  estop  those  who  are 
affected  by  such  order  from  denying  the  existence  of  such  fact.     It  is 
the  finding  of  the  fact  that  renders  the  decision  conclusive."8 

7.  Constitutional  jurisdiction  can  not  be  taken  away  by 
legislature. — If  exclusive  jurisdiction  is  conferred  upon  one  court  by 
the  constitution,  the  legislature  can  not  confer  such  jurisdiction  upon  any 
other  court ;  but  where  the  constitution  confers  j  urisdiction  upon  one  court 
without  making  such  jurisdiction  exclusive,  the  legislature  may  confer 
on  other  courts  the  same  powers  and  functions.     The  constitution  of 
the  State  of  Indiana  does  not  confer  exclusive  jurisdiction  upon  any  of 
the  courts  of  the  state,  but  confers  upon  the  legislature  the  power  to 

(e)  The  O.  &  M.  R.  R.  Co.  v.  Shultz,     v.  The  city  of  Evansville,  15  Ind.  395; 
31  Ind.  150;  Taylor  v.  Connor,  7  Ind.     Hornaday  v.  The  State,  43  Ind.  306; 
115  ;  Porter  v.  Stout,  73  Ind.  3 ;  Mun-     Rhodes  v.  Piper,  40  Ind.  369. 

cie  v.  Joest,  74  Ind.  409.  (g)  Rhodes   v.   Piper,  40  Ind.  369 ; 

(f)  The  Evansville,  etc.,  R.  R.  Co.    Muncie  v.  Joest,  74  Ind.  409;  Newman 

v.  Manning,  89  Ind.  422. 


6  JURISDICTION.  [CHAP. 

regulate  the  jurisdiction  of  the  several  courts  of  superior  as  well  as  in- 
ferior jurisdiction.11  But  while  the  legislature  may  regulate  and  limit 
the  jurisdiction  of  the  supreme  court  and  circuit  courts,  they  are  ex 
pressly  provided  for  in  the  constitution  and  can  not  be  abolished.' 

This  seems  to  be  true  also  of  justices  of  the  peace,  although  Mr.  Bus- 
kirk,  in  his  valuable  work  on  practice,  says:  "  The  power  to  create 
courts  inferior  to  the  circuit  court  is  expressly  given,  but  is  discretion- 
ary and  not  mandatory." j 

The  constitution  provides  in  express  terms  that  a  competent  number 
of  justices  of  the  peace  shall  be  elected  by  the  voters  in  each  township 
in  the  several  counties.  They  shall  continue  in  office  four  years,  and 
their  powers  and  duties  shall  be  prescribed  by  law.k 

8.  Concurrent  may  be  exercised  by  court  first  taking  ju- 
risdiction.— "Where  concurrent  jurisdiction  exists  in  different  courts, 
the  court  first  assuming  jurisdiction  must  have  the  exclusive  power 
to  dispose  of  the  particular  cause  or  proceeding,  and  "  courts  can  not 
interfere  with  the  judgments  or  decrees  of  other  courts  of  concurrent 
jurisdiction." l 

g.  Concurrent  with  courts  of  other  states. — The  courts  of 
this  state  have  concurrent  jurisdiction  with  the  courts  of  the  State  of 
Kentucky,  of  all  actions,  civil  or  criminal,  arising  on  the  Ohio  river 
where  the  two  states  possess  the  opposite  shores,  and  with  the  courts 
of  the  State  of  Illinois  of  all  actions  arising  on  the  Wabash  river  so 
far  as  that  river  forms  the  boundary  between  the  two  states. m 

And  courts  of  this  state  have  jurisdiction  to  prevent  a  wrong  to  a 
citizen  of  another  state  by  an  act  committed  upon  land  in  this  state.0 

(h)  Const,  of  Ind.,  art.  7,  ?§  1-8;  R.  (o)  Burk  v.  Sitnonson,  104  Ind.  173. 

S.  1881,  \\  161-168.  (1)  Estee's  Plead,  and  Forms,  18. 

(i)  Const.,  art.  7.  §  1 ;  R.  S.  1881,  §  (m)  Const,  of  Ind.,  art.  14,  %  1,  2; 

161;  Busk.  Prac.  2.  R.  S.  1881,  §g  221,  222;  1  Rev.  Laws  of 

( j)  Busk.  Prac.  2.  Va.  Vol.  1. 59 ;  R.  S.  1881,  §§  1579,  308; 

(k)  Const.,  art.  7,  §  14;  R.  S.  1881,  §  Sherlock  v.  Ailing,  44  Ind.  184;  Car- 

174;  Iglehart's  Treatise,  1.  lisle  v.  The  State,  32  Ind.  66. 


m.] 


JURISDICTION    OF   COURTS. 


CHAPTER   III. 
JURISDICTION  OF  THE  COURTS  OF  INDIANA. 


SECTION*. 

10.  How  regulated. 

OF   THE   SUPREME   COURT. 

11.  Appellate  jurisdiction. 

CIRCUIT   COURTS. 

12.  General  jurisdiction. 

13.  Is  concurrent  and  exclusive. 

14.  Exclusive  jurisdiction. 

15.  Of  common    pleas   transferred   to 

circuit  court. 

16.  In   counties    having    no   superior 

court. 

17.  Concurrent  jurisdiction. 

18.  Where  subject-matter  is  in  two  or 

more  counties. 

19.  Appellate  jurisdiction. 

20.  From   boards   of  county  commis- 

sioners. 

21.  From  mayors'  and  city  courts. 

22.  From  surveyors  and  awards  of  ar- 

bitrators. 


SECTION. 

JUSTICES  OF  THE  PEACE. 

23.  Have  only  statutory  jurisdiction. 

24.  In  misdemeanors. 

25.  In  felonies. 

26.  In  assault  and  battery. 

27.  Territorial  jurisdiction. 

28.  Territorial  civil  jurisdiction. 

29.  Amount. 

30.  How  amount  of  claim  determined. 

31.  Exclusive  jurisdiction. 

MAYORS    OF    CITIES. 

32.  Generally. 

CITY   COURTS. 

33.  Concurrent  jurisdiction. 

COUNTY    COMMISSIONERS. 

34.  Judicial  and  legislative. 

35.  Exclusive  jurisdiction. 


10.  How  regulated. — In  Indiana,  the  jurisdiction  of  the  several 
courts  of  the  state  is  entirely  governed  by  the  legislature,  except  that 
the  constitution  provides  that  the  "  supreme  court  shall  have  jurisdiction 
co-extensive  with  the  limits  of  the  state  in  appeals  and  writs  of  error, 
under  such  regulations  and  restrictions  as  may  be  provided  by  law."* 

OF  THE  SUPREME   COURT. 

11.  Appellate  jurisdiction. — It  is  not  the  intention  to  give  more 
than  a  mere  summary  of  the  jurisdiction  of  the  supreme  court,  as  Mr. 
Buskirk's  able  work  on  practice  in  that  court  has  made  a  more  extended 
consideration  of  its  powers  and  duties  unnecessary. 

By  an  act  approved  May  13,  1852,  it  was  provided  that  the  supreme 


(a)  Const.,  irt.  7,  §4;  R-  S.  1881,  \  164. 


8  JURISDICTION    OP   COURTS.  [CHAP. 

court  should  consist  of  four  judges,  and  should  have  jurisdiction  in  ap- 
peals co-extensive  with  the  state.b  This  act  was  amended  December 
16,  1872,  by  increasing  the  number  of  judges  to  five,  but  the  jurisdic- 
tion of  the  court  was  not  changed.0 

Writs  of  error  Avere  abolished  by  the  code  of  1852. d  This  direct 
provision  abolishing  writs  of  error  has  been  omitted  in  the  revision  of 
1881, e  but  only  one  mode  is  provided  for  removing  causes  from  inferior 
courts  to  the  supreme  court,  and  that  is  by  appeal/ 

Where  the  action  is  originally  brought  before  a  justice  of  the  peace 
or  mayor  of  a  city,  no  appeal  lies  to  the  supreme  court  where  the 
amount  in  controversy,  exclusive  of  interest  and  costs,  does  not  exceed 
fifty  dollars,  except  in  cases  originating  before  a  justice  of  the  peace  or 
mayor  of  a  city  involving  the  validity  of  an  ordinance  passed  by  an 
incorporated  town  or  city.  Where  the  validity  of  such  an  ordinance  is 
involved,  there  is  no  limitation  of  the  right  of  appeal.  Under  the  old 
code  the  limitation  was  ten  dollars,8  which  amount  was  increased  in  the 
revised  code  of  1881  to  fifty  dollars.11  And  the  amount  of  the  judg- 
ment in  the  court  from  which  the  appeal  is  taken  to  the  supreme  court 
must  determine  the  amount  in  controversy.'  This  limitation  of  the 
right  of  appeal  only  applies  to  actions  originating  before  justices  of 
the  peace  and  mayors  of  cities. 

A  judgment  for  any  amount,  no  matter  how  small,  may  be  appealed 
from  where  the  cause  originates  in  the  circuit  or  superior  courts,  and 
there  is  no  other  limitation  of  the  right  of  appeal  to  the  supreme 
court. 

The  legislature  has  power  to  regulate  the  appellate  jurisdiction  of  the 
supreme  court,  and  to  confer  upon  such  court  original  jurisdiction. 
The  legislature  has  not  exercised  the  power  of  conferring  original  juris- 
diction upon  the  supreme  court,  and  it  has  no  such  jurisdiction  further 
than  to  exercise  certain  powers  in  aid  of  its  jurisdiction  as  an  appellate 
court. k 

An  act  was  passed  in  1881  authorizing  the  appointment  of  five  com- 
missioners of  the  supreme  court,  whose  duties  are  similar  to  those  of 
the  judges,  but  the  act  does  not  affect  the  jurisdiction  of  the  court.1 

(b)  2  G.  &  H.  Stat.  p.  1.  (i)  Overton  v.  Overton,  17  Ind.  226; 

(c)  2  11.  S.  1876,  p.  1.  Tripp  v.  Elliott,  5  Blkf.  168;  Bogart 

(d)  2  R.  S.  1876,  p.  238,  §  550.  u.  The  City  of  New  Albany,  1  Ind.  38; 

(e)  R.  S.  1881,  §  632.  Morton  Gravel  Road  Co.  v.  Wysong,  51 

(f)  Busk.  Prac.  8.  Ind.  4. 

(gJF  2  R.  S.  1876,  p.  238,  §  550.        (k)  R.  S.  1881,  §§  1302,  1303. 
(h)  R.  S.  1881,  §  632.  (1)  Acts  1881,  p.  92. 


HI.]  JURISDICTION    OF    COURTS.  9 

CIRCUIT    COURTS. 

12.  General  jurisdiction. — The  circuit  court  is  one  of  general  ju- 
risdiction.    It  has  no  constitutional  jurisdiction,  the  legislature  having 
full  power  to  change,  regulate,  or  limit  its  jurisdiction  at  will.     The 
legislature  has  conferred  upon  the  circuit  court  exclusive  jurisdiction 
in  certain  cases;  and  before  the  common  pleas  court  was  abolished, 
that  court  was  given  exclusive  jurisdiction  in  certain  other  cases.     By 
the  act  of  March  6,  1873,  the  common  pleas  court  was  abolished,  and 
such  jurisdiction  as  was  then  exercised  by  that  court  was  conferred 
upon  the  circuit  courts  of  the  state. m 

By  force  of  this  act,  such  jurisdiction  as  existed  exclusively  in  the 
common  pleas  court  prior  to  its  enactment  became  the  exclusive  juris- 
diction of  the  circuit  court.  (1) 

In  those  counties  of  the  state  in  which  no  superior  or  criminal  cir- 
cuit courts  have  been  established,  the  circuit  court  has  exclusive  juris- 
diction, except  in  cases  where  jurisdiction  has  been  expressly  conferred 
upon  justices  of  the  peace,  mayors  of  cities,  county  commissioners,  and 
city  courts. 

13.  Is  concurrent  and  exclusive. — Certain  changes  in  the  juris- 
diction of  the  circuit  court  have  been  effected  by  the  establishment  of 
superior  and  criminal  courts  in  some  of  the  counties.    In  counties  where 
the  criminal  courts  are  established,  the  criminal  jurisdiction  of  the  cir- 
cuit court  has  been  taken  away,  and  exclusive  jurisdiction  in  such  cases 
conferred  upon  the  criminal  courts ;  and  in  the  counties  where  supe- 
rior courts  have  been  established,  such  courts  have  been  given  concur- 
rent jurisdiction  with  the  circuit  courts  where  the  jurisdiction  of  the 
circuit  court  was  exclusive  when  the  common  pleas  court  was  in  exist- 
ence, but  still  leaving  to  the  circuit  courts  exclusive  jurisdiction  in 
certain  cases. 

The  jurisdiction  of  the  circuit  court,  then,  is  appellate  and  original, 
and  either  exclusive  or  concurrent  with  the  superior  courts,  and  courts 
of  justices  of  the  peace,  mayors  of  cities,  and  city  courts.  Its  juris- 
diction is  also  both  civil  and  criminal,  except  in  the  counties  where 
criminal  courts  exist. 

14.  Exclusive  jurisdiction. — The  circuit  court  has  exclusive  ju- 
risdiction in  all  the  counties  of  the  state,  except  those  in  which  criminal 
courts  have  been  established,  in  all  felonies.0 

In  those  counties  where  criminal  courts  now  exist,  the  circuit  court 

(m)  2  K.S.I  876,  p.  390,  §  79;  R.  S.         (n)     R.  S.  1881,  \  1314. 
1881,  §1335. 

(1)  Hillenberg  v.  Bennett,  88  Ind.  540. 


10  JURISDICTION   OF   COURTS.  [CHAP. 

has  no  criminal  jurisdiction,  the  same  having  been  conferred  on  the 
former.  ° 

In  the  county  of  Marion,  the  circuit  court  has  exclusive  original  ju- 
risdiction of  all  cases  of  slander. p  It  has  also  exclusive  jurisdiction  in 
all  cases  where  the  common  pleas  court  formerly  had  exclusive  juris- 
diction, except  in  actions  against  executors  and  administrators.  The 
act  of  the  legislature  establishing  the  superior  court  in  Marion  county 
gave  that  court  concurrent  jurisdiction  with  the  circuit  court  in  all  cases 
except  slander,  and  concurrent  jurisdiction  with  the  common  pleas 
court  in  all  cases  except  such  causes  of  which  the  common  pleas  court 
then  had  original  exclusive  jurisdiction,  except  in  actions  by  and  against 
executors  and  administrators. q 

The  common  pleas  court  then  had  original  exclusive  jurisdiction  in 
all  matters  relating  to  the  probate  of  last  wills  and  testaments,  grant- 
ing of  letters  testamentary,  of  administration  and  guardianship  ;  of  all 
matters  relating  .to  the  settlement  and  distribution  of  decedents'  es- 
tates, and  the  personal  estates  of  minors  ;  all  actions  against  executors 
and  administrators  to  authorize  guardians  to  sell  and  convey  real  estate 
of  their  wards,  and  the  appointment  of  guardians  of  persons  of  un- 
sound mind  ;  the  examination  and  allowance  of  the  accounts  of  exec- 
utors and  administrators  and  of  the  guardians  of  minors/ 

By  an  act  approved  April  7,  1881,  the  jurisdiction  of  the  circuit 
court  is  denned,  and  previous  acts  relating  to  such  jurisdiction  are  re- 
pealed. 

The  act  provides :  "  Such  court  shall  have  original  exclusive  juris- 
diction in  all  cases  at  law  and  in  equity  whatsoever,  and  in  criminal 
cases  and  actions  for  divorce,  except  where  exclusive  or  concurrent  ju- 
risdiction is  or  may  be  conferred  by  law  upon  justices  of  the  peace.  It 
shall  also  have  exclusive  jurisdiction  of  the  settlement  of  decedents' 
estates  and  of  guardianships :  Provided,  however,  that  in  counties  in 
which  criminal  or  superior  courts  exist,  or  may  be  organized,  nothing 
in  this  section  shall  be  construed  to  deprive  such  courts  of  the  jurisdic- 
tion conferred  upon  them  by  law.  And  it  shall  have  such  appellate 
jurisdiction  as  may  be  conferred  by  law ;  and  it  shall  have  jurisdiction 
of  all  other  causes,  matters,  and  proceedings,  where  exclusive  jurisdic- 
tion thereof  is  not  conferred  by  law  upon  some  other  court,  board,  or 
officer."9 

It  was  held  in  Ex  parte  Shockley,4  that  the  common  pleas  court  of 

(o)  R.  S.  1881,  §  1369.  (r)  2  G.  &  H.,  p.  20,  §4;  William- 

(p)  R.  S.  1881,  \  1351.  son  v.  Miles,  25  Ind.  55;  Hillenberg  v. 

(q)  2  R.  S.  1876,  p.  24,  §  10 ;  R.  S.    Bennett,  88  Ind.  540. 
1881,  §2217.  (s)  R.  S.  1881,?  1314. 

(t)  Ex  purte  Shnckley,  14  Ind.  413. 


HI.]  JURISDICTION    OF   COURTS.  11 

the  county  in  which  letters  of  administration  or  guardianship  had  been 
granted  had  exclusive  jurisdiction  of  applications  for  sales  of  real  es- 
tate by  such  administrators  or  guardians,  even  where  the  real  estate 
was  situate  in  another  county,  but  this  case  was  expressly  overruled  in 
a  later  case,"  in  which  it  was  held  that  the  common  pleas  court  had 
exclusive  jurisdiction,  but  not  the  court  of  the  county  in  which  the  let- 
ters were  granted.* 

15.  Of  common  pleas  transferred  to  circuit  court. — By  the 
act  abolishing  the  common  pleas  court,  approved  March  6,  1873,  the  ju- 
risdiction of  that  court  was  transferred  to  and  vested  in  the  circuit 
court.w 

It  follows  that  in  the  county  of  Marion  the  circuit  court  has  such 
exclusive  jurisdiction  as  was  formerly  vested  in  the  court  of  common 
pleas,  except  in  actions  against  executors  and  administrators.  In  the 
county  of  Tippecanoe  the  circuit  court  has  no  exclusive  jurisdiction. 
The  act  by  which  the  superior  court  of  that  county  was  established, 
gave  that  court  concurrent  jurisdiction  with  the  circuit  court  in  all  civil 
causes.1 

16.  In  counties  having  no  superior  court. — In  all  counties  in 
the  state  where  no  superior  courts  exist  the  circuit  court  has  original  ex- 
clusive civil  jurisdiction  of  all  cases  of  slander,  libel,  breach  of  mar- 
riage contract,  and  when  the  title  to  real  estate  shall   be  in  issue, 
and  in  all   other  civil  actions  where   the  amount  involved   is   over 
two  hundred  dollars,  except  that  a  defendant  may  confess  judgment 
for  any  sum  not  exceeding  three  hundred  dollars  in  a  justice's  court, 
and  in  all  cases  for  bastardy  and  actions  against  railroads  for  dam- 
ages, where  the  amount  of  the  damages  do  not  exceed  fifty  dollars, 
and  in  all  cases  where  the  common  pleas  court  formerly  had  exclusive 
jurisdiction. y 

In  those  counties  where  no  criminal  courts  exist  the  circuit  court  has 
original  exclusive  jurisdiction  in  all  felonies  and  of  all  misdemeanors 
where  imprisonment  must  be  a  part  of  the  penalty,2  except  that  mayors 
of  cities  may  imprison  for  not  exceeding  thirty  days.8 

In  cases  of  misdemeanor,  although  justices  of  the  peace  have  juris- 
diction concurrent  with  the  circuit  court  in  all  misdemeanors  not  pun- 

(u)  Williamson  v.  Miles,  25  Ind.  55.         (w)  R.  S.  1881,  §§  1335,  1336,  1337; 

But  see  the  later  case  of  Vale  v.  Rine-  Williams  v.  Perrin,  73  Ind.  57. 
Imrt,  105  Ind.  6.  fx)  1  R.  S.  187G,  p.  401,  §  10. 

(v)  Wheeler  v.  Calvert,  25  Ind.  365;  (y)  R.  S.  1881,  §?  1314,  1336. 
The  Jeffersonville  R.  R.  Co.  v.  Swaynp,  (z)  R.  S.  1881,  §§1314,  1637. 
26  Ind.  477.  (a)  R.  S.  1881,  §  3062. 


12  JURISDICTION   OF   COURTS.  [CHAP. 

ishable  by  imprisonment,  they  have  no  power  to  assess  a  greater  fine 
than  twenty-five  dollars,  and  where  the  justice  finds  that  a  less  fine  than 
twenty-five  dollars  would  be  an  inadequate  punishment,  it  is  his  duty 
to  certify  the  cause  to  the  circuit  court  where  the  cause  is  tried,  as  if 
originally  brought  in  that  court.b 

17.  Concurrent  jurisdiction. — The  circuit  court  has  concurrent  ju- 
risdiction with  courts  of  justices  of  the  peace,  in  all  civil  causes  where 
the  amount  involved  does  not  exceed  two  hundred  dollars,0  except  in 
actions  against  railroad  companies  for  animals  killed  where  the  damages 
do  not  exceed  fifty  dollars, d  and  in  actions  for  bastardy. 

City  courts  have  the  same  jurisdiction  as  justices  of  the  peace  in 
civil  cases.6 

In  the  county  of  Tippecanoe  the  circuit  court  has  concurrent  juris- 
diction with  the  superior  court  of  that  county  in  all  civil  causes/ 

In  the  county  of  Vigo  the  superior  court  of  that  county  has  original 
concurrent  jurisdiction  in  civil  cases,  including  actions  by  or  against 
executors,  guardians,  and  administrators,  but  the  superior  court  has  no 
jurisdiction  in  matters  of  probate  or  the  settlement  of  decedents'  es- 
tates.g 

In  the  county  of  Marion  the  circuit  court  has  concurrent  jurisdiction 
with  the  suporior  court  of  that  county  in  all  civil  cases,  except  slander 
and  such  cases  of  which  the  common  pleas  court  had  exclusive  original 
jurisdiction  February  15,  1871.  The  jurisdiction  in  cases  by  and 
against  executors  and  administrators  is  concurrent  with  the  superior 
court  in  Marion  county. h 

The  circuit  court  has  no  jurisdiction  in  misdemeanors  where  the 
punishment  can  not  exceed  a  fine  of  three  dollars.1  But  in  civil  cases 
there  is  no  limit  to  the  jurisdiction  of  the  circuit  court  as  to  the  amount 
involved.  The  court  has  jurisdiction,  no  matter  how  small  the  amount 
may  be.  But  where  a  party  brings  his  action  in  that  court*,  where 
the  amount  claimed  is  less  than  fifty  dollars,  he  can  not  recover  costs 
when  the  action  is  for  money  demands  on  contract. j  This  provision 
does  not  apply  to  actions  by  executors  or  administrators.1 

18.  Where  subject-matter  is  in  two  or  more  counties. — 
Where  the  subject  matter  of  an  action  is  situate  in  two  or  more  coun- 

(bl  R.  S.  1881,  I  1G3G.  (h)  2   R.  S.  1876,  p.  6,  §  5;  2  Ib.  24, 

(c)  2  R.  S.  1876,  p.  G05,  §  10;    \\.  S.     §  10. 

1881,  §§  1314,  1433,  5-226.  (i)  R.  S.  1881,  §  1637. 

(d)  R.  S.  1881,  §4026.  (j)  R.  S.  1881,  §  591;   Bosworth  v. 

(e)  R.  S.  1881,  §  3206.  The  Wayne  Pike  Co.,  101  Ind.  175. 

(f)  2  R.  S.  1876,  p.  401,  ?  10.  (*)  Hillenberg   v.  Bennett,   88   Ind. 

(g)  R.  S.  1881,  §  1351.  540. 


HI.]  JURISDICTION    OF   COURTS.  13 

ties,  the  court  first  taking  cognizance  thereof  shall  retain  jurisdiction 
to  the  exclusion  of  the  courts  of  the  other  counties.k 

The  jurisdiction  as  to  territory  is  confined  to  the  respective  counties 
in  which  the  several  circuit  courts  are  held.1 

19.  Appellate  jurisdiction. — Prior  to  the  enactment  abolishing 
the  common  pleas  court,  the  circuit  court  had  appellate  jurisdiction 
of  certain  cases  from  that  court,  of  which  it  now  has  original  jurisdic- 
tion. 

It  has  now  appellate  jurisdiction  of  all  cases,  civil  and  criminal,  of 
which  the  courts  of  justices  of  the  peace  have  original  jurisdiction,  and 
also  of  all  cases  of  which  county  commissioners  have  original  jurisdic- 
tion, except  where  they  act  in  their  legislative  capacity.  In  all  cases 
where  the  board  of  county  commissioners  have  jurisdiction  as  a  court, 
their  action  may  be  appealed  from  to  the  circuit  court."1 

In  counties  having  superior  courts  the  appellate  jurisdiction,  in  civil 
cases  is  made  concurrent  with  those  courts.11 

20.  From  boards  of  county  commissioners. — It  was  held  by 
the  supreme  court,  in  a  long  line  of  authorities,  that  where  specific  pow- 
ers were  given  the  board  of  county  commissioners  by  a  special  statute, 
there  could  be  no  appeal  from  any  act  of  theirs  under  such  statute,  un- 
less the  special  statute  itself  expressly  provided  for  an  appeal ;  and 
that  section  31  of  the  general  act  creating  such  boards  and  prescribing 
their  duties  could  not  confer  a  right  of  appeal  except  in  cases  arising 
under  that  statute.0 

The  same  court  has  since  held  that  in  all  cases  where  the  right  to 
determine  the  question  is  not  exclusively  vested  in  the  board  of  county 
commissioners,  an  appeal. will  lie  under  the  general  law  governing  such 
board,  unless  the  special  statute,  conferring  jurisdiction  on  the  board 
expressly  forbids  such  appeal. p 

The  authorities  upon  this  point  are  numerous  and  conflicting,  but 
the  later  decisions,  which  must  be  considered  as  the  law,  at  least  for 

(k)  R.  S.  1881,  I  1318;    Holmes  v.         (o)  Bosleyr.  Ackelmire,  39  Ind.536; 

Taylor,  48  Ind.  169.  The  Board,  etc.  v.  Smith,  40  Ind.  61; 

(1)  R.  S.  1881,  \\  1313,  1314.  Turner  v.  Rehm,  43  Ind.  208;  Allen  7-. 

(m)  R.  S.  1881,  §2  1499,  5769,  5771,  Hostetter.  16  Ind.  15. 
5772;    Hanna   v.  The    Board,  etc,  29         (p)  Alexander  v.  The  McCordsville, 

Ind.  170;  Fordyce  v.  The  Board,  etc.,  etc.,  Gravel   Road   Co.,  44   Ind.   43l>; 

28  Ind.  454;  Wright,  Auditor,  etc.,  v.  The    State    ex   rel.   Reynolds  v.  The 

Harris,  29  Ind.  438;    Bosley  v.  Ackel-  Board,  etc..  45  Ind.  501;  James  r.  The 

mire,  39  Ind.  536.  Greenboro,  etc.,  Turnpike  Co.,  47  Ind. 

(n)  R.  S  1881,  ||  1314,  1351.  379. 


14  JURISDICTION   OF  COURTS.  [CHAP. 

the  present,  give  the  circuit  court  jurisdiction  of  appeals  from  the  board 
of  county  commissioners,  although  the  special  statute  under  which  the 
action  arose  gives  no  such  right,  unless  there  is  something  in  the  stat- 
ute showing  that  it  was  intended  by  the  legislature  that  the  decision 
of  the  board  should  be  final.  (1) 

21.  From  mayors'  and  city  courts. — The  circuit  court  has  ap- 
pellate jurisdiction  of  all  cases  of  which  mayors  of  cities  have  juris- 
diction,q  and  of  all  causes  of  which  judges  of  cities  have  original  juris- 
diction.1 

22.  From  surveyors  and  awards  of  arbitrators. — It  has  ju- 
risdiction also  of  appeals  from  surveys  made  by  a  surveyor.8   And  from 
the  award  of  arbitrators  to  assess  damages,  sustained  in  consequence 
of  the  location  or  construction  of  any  railroad.' 

JUSTICES    OF    THE   PEACE. 

23.  Have  only  statutory  jurisdiction. — Courts  of  justices  of  the 
peace,  being  inferior  courts,  created  by  statute,  have  only  such  jurisdic- 
tion as  is  expressly  conferred  upon  them  by  statute." 

24.  In  Misdemeanors. — They  have  original  exclusive  jurisdic- 
tion of  criminal  causes  where  the  punishment  for  the  offense  charged 
can  not  exceed  a  fine  of  three  dollars ; v  and  concurrent  jurisdiction 
with  the  circuit  court  of  all  cases  where  the  punishment  may  be  a  fine 
only ;  w  but  a  justice  of  the  peace  has  no  power  to  imprison  or  to  assess 
a  fine  exceeding  twenty-five  dollars  ;  and  where  a  justice  trying  a  cause 
where  the  offense  may  be  punished  by  imprisonment  finds  that  the  of- 
fense is  of  such  a  character  that  the  defendant  should  be  imprisoned, 
or  where  the  fine  should  exceed  twenty-five  dollars,  it  is  his  duty  to 
certify  the  cause  to  the  circuit  court.1 

25.  In  felonies. — Justices  have  jurisdiction  to  examine  and  hold 
to  bail  persons  charged  with  felonies.7 

The  statute  under  which  justices  of  the  peace  are  given  jurisdiction 

(q)  R.  S.  1881,  §  3062.  (v)  R.  S.  1881,  §  1637. 

(r)  R.  S.  1881,  §  3216.  (w)  R.  S.  1881,  §  1637;  The  State  v. 

(s)  R.  S.  1881,  I  5955.  Creek,  MS.  case  No.  9,900,  January  10, 

(t)  R.  S.  1881,  \  3907.  1882. 

(u)  Gregg   v.  Wooden,  7  Ind.  499;  (x)  R.  S.  1881,  §?  1636,  1637,  5322. 

Wakefield   v.  The  State,  5   Ind,  195;  (y)  R.  S.  1881,  §1634;  Hawkins  v. 

Matlock  v.  Strange,  8  Ind.  57 ;  Wiley  The  State  ex  rel ,  24  Ind.  288. 

V.Strickland,  8  Ind.  453;  Hawkins  v.  (>)  Wayraire  v.  Powell.  105  Ind.  328. 
The  State  ex  rel.,  etc.,  24  Ind.  288. 


III.]  JURISDICTION   OF   COURTS.  15 

in  felonies  is  very  general  and  uncertain  in  its  terms,  and  has  given 
rise  to  much  difficulty  in  determining  what  is  their  duty  in  such  cases, 
and  what  the  judgment  of  the  justice  should  be. 

But  in  the  case  of  Hawkins  v.  The  State  it  was  held  that  it  was  not 
necessary  that  the  justice  should  render  a  judgment  of  guilty  in  such 
a  case,  his  duty  being  "merely  to  hold  to  bail."  The  result  of  this 
decision  is,  that  although  the  court  is  one  of  record,  its  record  need 
not  disclose  what  the  finding  of  the  court  is,  but  merely  the  fact  that 
the  justice  held  the  defendant  to  bail. 

26.  In  assault  and  battery. — The  statute  expressly  forbids  jus- 
tices of  the  peace  trying  cases  of  assault  and  battery  or  assault,  "  unless 
the  injured  party  be  present  as  a  witness  at  the  trial,  or  having  been 
subpoenaed,  refuses  to  attend,  and  can  not  be  compelled  to  attend  by  attach- 
ment for  any  other  cause  than  sickness  or  inability  to  attend  by  reason  of  Hie 
injuries  he  may  have  received  from  the  defendant,  or  unless  a  subpoena  issued 
for  the  injured  party  shall  have  been  returned  '  not  found;'"  and  provides 
that  "  no  trial  shall  be  had  upon  a  complaint  for  an  affray,  unless  some 
person  who  saw  the  same  shall  be  present  as  a  witness,  or  having  been  sub- 
poenaed, refuses  to  attend."2   In  such  case,  the  record  of  the  justice  should 
show  the  facts  required  by  the  statute.     The  supreme  court  held,  under 
the  act  of  1355,  that  a  failure  on  the  part  of  the  justice  to  comply  with  the 
statute  in  making  up  his  record  could  not  affect  the  rights  of  the  defend- 
ant, and  that  a  trial  by  the  justice  would  bar  another  prosecution,  al- 
though the  record  did  not  disclose  the  facts,  as  required  by  the  statute,* 
but  the  present  criminal  code  provides  that  such  judgments  shall  be  void. 

27.  Territorial  jurisdiction. — The  criminal  jurisdiction  of  a  jus- 
tice of  the  peace  as  to  territory  is  co-extensive  with  the  county.b 

28.  Territorial  civil   jurisdiction. — The  civil  jurisdiction  of 
justices  of  the  peace  is  confined,  as  a  general  rule,  to  their  respective 
townships.0    In  actions  commenced  by  capias  ad  respondendum  d  and 
actions  for  bastardy,  their  jurisdiction  is  co-extensive  with  the  county. 
In  actions  of  replevin,  their  jurisdiction  extends  to  the  township  in 
which  the  defendant  resides,  and  the  township  in  which  the  property 
is  either  taken  or  detained.6 

(z)  R.  S.  1881,  §  1638.  Graham  v.  Klyla,  29  Ind.  432;  B.  S. 

(a)  The  State  v.  George,  53  Ind.  434.  1881,  §  1551. 

(b)  K.  S.  1881,  §  1637;  McDonald's  (e)  Test  v.  Small,  21  Ind.  127;  Bed- 
Treatise,  627.  dinger  v.  Jocelyn,  18  Ind.  325;  Nesbit 

(c)  R.  S.  1881,  §  1431;  The  Morton  v.  Long,  37  Ind.  300;  Jocelyn  v.  Bar- 
Gravel  Road  Co.  r.  Wysong,  51  Ind.  4.  rett,  18  Ind.  128;   Copple  v.  Lee,   78 

(d)  Harris   v.  Knapp,  21  Ind.  198;  Ind.  230. 


16  JURISDICTION   OF  COURTS.  [CHAP. 

29.  Amount. — Justices  of  the  peace  have  jurisdiction  "to  try 
suits  founded  on  contracts  or  tort,  where  the  debt  or  damage  claimed, 
or  the  value  of  the  property  sought  to  be  recovered,  does  not  exceed 
one  hundred  dollars  and  concurrent  jurisdiction  to  the  amount  of  two 
hundred  dollars,  but  the  defendant  may  confess  judgment  for  any  sum 
not  exceeding  three  hundred  dollars.  "f 

It  was  formerly  held  that  the  limitation  of  jurisdiction  as  to  the 
amount  involved  did  not  apply  to  actions  brought  to  recover  property 
taken  upon  execution,  on  the  ground  that  such  was  a  special  proceed- 
ing, not  governed  by  the  general  statute.8 

But  since  the  act  of  1861  was  passed,  fixing  the  jurisdiction  of  jus- 
tices of  the  peace  at  two  hundred  dollars,  the  limitation  has  been  ap- 
plied, by  the  supreme  court,  to  actions  to  recover  personal  property.11 

30.  How  amount  of  claim  determined. — The  amount  laid  in 
the  conclusion  of  the  complaint  constitutes  the  plaintiff's  claim,  and 
must  govern   in   determining   whether  the  justice   has  jurisdiction. 
Where  an  account  is  filed  as  the  basis  of  the  action,  the  footing  of  the 
account  is  the  amount  involved.1 

Where  the  complaint  consists  of  several  paragraphs,  if  the  whole 
amount  demanded  in  all  of  the  paragraphs  exceeds  two  hundred  dol- 
lars, the  justice  has  no  jurisdiction.-1 

31.  Exclusive  jurisdiction. — Justices  of  the  peace  have  exclu- 
sive original  jurisdiction  of  actions  brought  against  railroad  companies 
in  this  state  for  animals  killed  by  their  cars,  where  the  injury  done  does 
not  exceed  fifty  dollars. k 

And  it  has  been  held  by  the  supreme  court  that  claims  for  stock 
killed  at  different  times  can  not  be  joined  so  as  to  give  jurisdiction  to 
the  circuit  court.1 

They  have' exclusive  original  jurisdiction  also  of  prosecutions  for 
bastardy."1 

MAYORS   OF   CITIES. 

32.  Generally. — Mayors  of  cities  have  exclusive  jurisdiction  of  all 

(f )  K.  S.  1881,  g  1433.  357;  Short  v.  Scott,  6  Ind.  430;  Culley 

(g)  Hannah  v.  Steinberger,  6  Blkf.     v.  Laybrook,  8  Ind.  285. 

520;    Matlock  v.  Strange.  8    Ind.  57;  (j)   Wetherill    v.  The   Inhabitants, 

Griffin  v.  Maloney,  13  Ind.  402.  etc.,  5  Dlkf.  357;  Swift   v.  Woods,  Ib. 

(h)  Leathers  v.  Hogan,  17  Ind.  242;  97;  Second  Nai'l   Blc.  of  Richmond  v. 

Harrell  v.  Hammond.  Adm'r,  25  Ind.  Hatton,  81  Ind.  101. 

104;   R.S.  1881,  §  1547.  (k)  R.  S.  1881,  §  4026. 

(i)   Mitchell  i:  Smith,  24  Ind.  252;  (1)  The   Toledo,  etc., .  R.   R.   Co.   v. 

Wetherill  a/The  Inhabitants,etc.,5  Blkf.  Tilton,  27  Ind.  71. 

(m)  R.  S.  1881,  \  978. 


m.J  JURISDICTION   OF   COURTS.  17 

prosecutions  for  violations  of  the  by-laws  and  ordinances  of  the  city 
and  township  in  which  such  city  is  situated.  They  have,  within  the 
limits  of  their  respective  cities,  the  same  jurisdiction  as  that  of  justices 
of  the  peace  in  all  matters,  civil  and  criminal,  arising  uiider  the  laws 
of  the  state,  and  in  crimes  and  misdemeanors  their  jurisdiction  is  co- 
extensive with  the  county  in  which  their  respective  cities  are  situate." 
But  in  criminal  cases  mayors  of  cities  have  power  to  imprison,  for 
any  time  not  exceeding  thirty  days,  as  a  part  of  the  punishment.0 

CITY  COURTS. 

• 

33.  Concurrent  jurisdiction. — City  courts  have  no   exclusive 
jurisdiction.     They  have  concurrent  jurisdiction  with  justices  of  the 
peace  iu  all  civil  cases.     By  the  act  creating  city  courts,  they  were  given 
concurrent  jurisdiction  with  the  circuit  courts,  where  the  amount  in 
controversy  did  not  exceed  fifteen  hundred  dollars,  except  in  cases  of 
slander,  libel,  divorce,  foreclosure  of  mortgages  on  real  estate,  and 
where  the  title  to  real  estate  was  in  issue. 

But  the  act  of  1881,  defining  the  jurisdiction  of  the  circuit  court, 
gives  that  court  exclusive  jurisdiction  of  all  cases  except  where  exclu- 
sive or  concurrent  jurisdiction  is  given  to  justices  of  the  peace,  and 
such  jurisdiction  as  is  conferred  by  law  upon  criminal  and  superior 
courts.  P 

The  effect  of  this  act  was  to  deprive  city  courts  of  all  jurisdiction 
not  conferred  upon  justices  of  the  peace. q 

COUNTY   COMMISSIONERS. 

34.  Judicial  and  legislative. — The   boards  of  county  commis- 
sioners are  courts  of  record,  and  are  of  limited  jurisdiction.     They  act 
in  two  capacities,  judicial  and  legislative.     It  is  only  with  their  juris- 
diction as  a  court  that  we  have  now  to  deal.     As  the  agents  of  their 
respective  counties,  their  duties  are  varied  and  extensive,  and  upon 
any  question  brought  before  them,  where  they  are  called  upon  to  act 
merely  in  their  legislative  capacity,  their  action  is  conclusive/ 

The  question  has  frequently  arisen  in  practice,  whether  in  the  cases 
in  litigation  the  commissioners  were  acting  in  their  legislative  capacity, 
and  the  question  has  been  of  no  little  embarrassment  to  the  courts. 

(n)  R.  S.  1881,  §  3062;  Wabasb,  etc.,  (p)  K.  S.  1881,  §  1314. 

By.  Co.  v.  Lash,  103  Ind.  80.  (q)  R.  S.  1881,  §  3206. 

(o)  R.  S.   1881,   §  3062;    Waldo  v.  (r)  R.  S.  1881,  §§  5731,  5745 ;  Hanna 

Wallace,    12    Ind.  569;     Schroeder's  v.  The  Board,  etc.,  29  Ind.  170. 
McDonald,  917  et  seq. 
2 


18  JURISDICTION   OF   COURTS.  [CHAP. 

These  questions  have  usually  been  raised  in  cases  of  appeal,  the  courts 
holding  that  where  the  board  acts  in  its  legislative  capacity  there  is  no 
appeal.  The  statute  provides  that  from  all  "  decisions  of  such  com- 
missioners there  shall  be  an  appeal,"  etc.8 

The  supreme  court  has  held  that,  under  this  section,  to  entitle  the 
party  to  an  appeal,  there  must  have  been  a  "  decision"  by  the  commis- 
sioners, and  that  in  a  case  where  there  is  an  adversary  proceeding.1 

35.  Exclusive  jurisdiction. — County  commissioners  have  ex- 
clusive original  jurisdiction  of  applications  for  the  location,  change,  or 
vacation  of  highways, u  and  applications  for  license  to  retail  intoxicat- 
ing liquors.7 

They  have  also  original  exclusive  jurisdiction  to  try  and  determine 
all  actions  upon  claims  against  their  respective  counties. w  And  of  pro- 
ceedings to  contest  the  election  of  any  county  or  township  officer.1 

(s)  R.  S.  1881,  H  5769,  5770,  5771,         (u)  R.  S.  1881,  §  5015  et  seq. 
5772.  (v)  R.  S.  1881,  §5312. 

(t)  Moffat  v.  The  State,  etc.,  40  Ind.         (w)  R.  S.  1881,  g  5758. 
217;  Hanna  v.  The  Board,  etc.,  29  Ind.         (x)  R.  S.  1881,  §  4758  et  seq. 
170;   Waldo  v.  Wallace,  12  Ind.  569; 
Platter  v.  Board  of  Com'rs,  etc.,  103 
Ind.  360. 


Uc(u. 


73  UJM  L^cU  ft-    04  /X 


17.] 


PARTIES. 


19 


CHAPTER  IV. 


PARTIES. 


SECTION. 

PLAINTIFFS. 

36.  Real  party  in  interest  must  sue. 

37.  Parties  having  united  interest  may 

sue. 

38.  Assignees  may  sue. 

WHAT   MAT   BE   ASSIGNED. 

39.  The  statute. 

40.  Assignment  of  judgments. 

41.  Vendors'  liens. 

42.  Accounts. 

43.  Promissory  notes. 

44.  What  not  assignable. 

45.  Right  of  action  for  tort. 

46.  Chattels  not  in  possession. 

47.  Certificates  of  purchase  and  guar- 

anties. 

ACTIONS   BT   AND   AGAINST   PUBLIC 
OFFICERS. 

48.  Township  trustees. 

49.  On  bonds  payable  to  the  state. 

50.  On  bond  of  public  officer. 
61.  On  bond  of  county  treasurer. 

52.  Commissioner  to  sell  real  estate. 

53.  On  bond  of  township  trustee. 

54.  When  the  state  real  party  in  in- 

terest. 

55.  In  actions  for  money  due  the  state 

in  the  hands  of  public  officer. 

56.  Surety  of  the  peace. 

57.  To  contest  elections. 

58.  On  guardian's  bond. 

59.  Relators    in   actions   against   tele- 

graph and  other  companies,  un- 
der the  statute  regulating  taxa- 
tion. 


SECTION. 

EXECUTORS,  ADMINISTRATORS,  TRUS- 
TEES OF  AN  EXPRESS  TRUST,  AND 
PERSONS  AUTHORIZED  BY  STAT- 
UTE TO  SUE. 

60.  May  sue  without  joining  party  in 

interest. 

61.  Agent  not  trustee  of  an  express 

trust. 

62.  Who  is  trustee  of  an  express  trust. 

63.  Who  authorized  by  statute  to  sue. 

ACTIONS   THAT   SURVIVE. 

64.  Personal  representative  may  sue. 

65.  For  injuries  resulting  in  death. 

66.  Authority  to  sue  under  decedents' 

act. 

ACTIONS   RELATING    TO    REAL   ESTATE. 

67.  General  rule. 

68.  Exceptions,  where  personal  estate 

insufficient  to  pay  debts. 

69.  Where   no   heirs   present   to  take 

possession  of  real  estate. 

70.  Growing  crops. 

71.  On   bond  of  administrator  or  ex- 

ecutor. 

72.  For  what   causes  action   on   bond 

may  be  brought. 

73.  When  creditor  may  sue  on  bond. 

74.  Action    to   set  aside   allowance  of 

fraudulent  claim. 

MARRIED   WOMEN   AS   PLAINTIFFS. 

75.  When  may  sue  alone. 

76.  When  husband  refuses  to  join  in 

action. 

77.  When  wife  may  sue  for  husband. 


20  PARTIES.  [CHAP. 

INFANTS.  MISCELLANEOUS. 

78.  When  may  sue.  *  85.  Unmarried  female  may  sue  for  her 

79.  When  sole   plaintiff  must  sue  by  own  seduction. 

next  friend.  86.  Actions  by  poor  person. 

80.  May  sue  as  poor  person,  without     87.  When    proper  plaintiff  refuses  to 

next  friend.  join  in  action. 

88.  When  parties  are  numerous,  part 
GUARDIANS  AS  PLAINTIFFS.  may  sue  for  all. 

81.  When  may  sue  as  such.  89.  When  surviving  partner  may  sue. 

82.  For  seduction  of  ward.  90.  Assignee  for  benefit  of  creditor. 

83.  Foreign  guardians.  91.  For  goods  shipped  C.  O.  D. 

84.  In  settlement  of  decedents'  estates.  92.  Persons  of  unsound  mind. 

PARTIES   DEFENDANT. 

93.  Who  proper  defendants. 

36.  Real  party  in  interest  must  sue. — Our  statute  provides 
that  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  except  that  an  executor,  administrator,  a  trustee  of  an  ex- 
press trust,  or  a  person  expressly  authorized  by  statute,  may  sue  with- 
out joining  with  him  the  person  for  whose  benefit  the  action  is  prose- 
cuted.0 

The  statute  is  simple  enough,  but  it  is  not  always  easy  to  determine 
who  is  the  "  real  party  in  interest."  The  code  in  this  respect  but  fol- 
lows out  the  old  equity  rule  as  to  parties. 

The  common-law  rule  was  that  the  person  having  the  legal  interest 
in  the  subject-matter  of  the  action  was  the  necessary  party  plaintiff. b 

It  was  held  in  the  case  cited  that  the  payee  still  held  the  legal  inter- 
est in  the  note  in  suit,  and  the  action  must  be  brought  in  his  name  in 
the  absence  of  any  indorsement,  though  the  note  was  made  payable  to 
the  payee  or  bearer,  and  was  held  by  the  party  in  whose  name  the  ac- 
tion was  brought. 

It  has  also  been  held  that  at  law  a  promise  made  by  one  person  to 
another,  for  the  benefit  of  a  third,  could  not  be  enforced  by  the  latter.0 

But  this  rule  does  not  apply  to  a  proceeding  in  equity,  where  the 
third  party,  for  whose  benefit  the  promise  is  made,  may  bring  the  ac- 
tion/ 

And  it  may  be  regarded  as  the  settled  law  in  this  state  that,  under 

(a)  R.  S.  1881,  $  251,  252;  Board  of  low  v.  Kemp,  7  Blkf.  544;  Britzell  v. 
Com'rs  ^.Jameson,  86  Ind.  154;  Pixley  Frylager,  2  Ind.  176;  Eastman  v.  Ram- 
v.  Van  Nostern,  100  Ind.  34.  sey,  3  Ind.  419. 

(b)  Jamison  v.  Jarrett,  4  Ind.  187.  (d)  Bird  v.  Lamus,  7  Ind.  615. 

(c)  Haskett  v.  Flint,  5  Blkf.  69 ;  Far- 


IV.]  PARTIES.  21 

the  code,  the  party  for  whose  benefit  the  promise  is  made  is  the  proper 
plaintiff.6 

In  the  last  case  cited,  Buskirk,  J.,  in  delivering  the  opinion,  paid: 
"  In  actions  at  law  privity  of  contract  is  essential,  but  the  rule  is  and 
always  has  been  different  in  equity ;  and  the  rule  should  be  regarded 
as  settled  in  this  state  that  a  party  not  known  as  a  contracting  party, 
for  whose  benefit  the  contract  was  made,  may  maintain  a  suit  upon  it 
in  equity.  Under  our  code  of  procedure  the  plaintiff  is  entitled,  on 
bringing  his  action,  to  whatever  relief  either  law  or  equity  would  have 
afforded  him,  on  the  case  made,  before  the  distinction  between  them  in 
practice  was  abolished.  The  two  systems  are  blended  together,  and 
either  legal  or  equitable  rights  are  to  be  enforced  in  the  civil  action 
provided  for." f 

It  would  seem  to  be  the  better  practice  that  the  suit  should  be 
brought  in  the  name  of  the  person  for  whose  benefit  the  promise  is 
made,  as  he  must  be  the  "  real  party  in  interest,"  as  being  the  only 
party  who  could  be  injured  by  a  breach  of  the  contract. 

In  almost  every  state  where  a  code  has  been  adopted,  the  rule  has 
been  so  changed  as  to  require  that  the  action  shall  be  brought  in  the 
name  of  the  party  for  whose  benefit  the  contract  is  made.g 

37.  Parties  having  united  interest  may  sue. — The  common- 
law  rule  with  reference  to  parties  has  been  very  materially  changed  by 
our  code.h  The  object  of  the  statute  is  that  all  persons  who  have  an 
interest  in  the  subject-matter  of  the  action  shall  be  made  parties 
thereto.  It  is  not  necessary  to  the  right  of  a  party  to  maintain  his 
action  that  he  should  be  the  legal  owner  of  the  thing  in  controversy. 
If  he  is  the  equitable  owner,  he  is  considered  under  the  code  as  the 
"  real  party  in  interest,"  and  as  such  is  the  proper  party  plaintiff.  And 
it  is  necessary  that  all  persons  who  have  a  united  interest  should  join 
in  the  suit,  unless  they  are  so  numerous  as  to  make  it  impracticable 
to  bring  them  all  before  the  court.1 

But  to  entitle  several  individuals  to  join  in  the  same  action,  their  in- 
terests must  be  united ;  they  must  be  claiming  "  one  general  right 

(e)  Day  v.  Patterson,  18  Ind.  117;  (g)  Throop's    N.   Y.    Code,   §  449; 
Duval  v.  Mclntosh,  23  Ind.  529 ;  Cross  Code  of  Iowa,  §  2543 ;  Code  of  Oregon, 
».  Truesdale,  28  Ind.  45  ;   David  v.  Cal-  §  27  ;  Code  of  Idaho,  §  4 ;  Code  of  Ari- 
loway,  30  Ind.  112;  Mathews  v.  Kit-  zona,  §4;  E.  S.  Ohio,  1880,  §  4993;  1 
enour,  31  Ind.  31 ;  Miller  r.  Billings-  Van  Sant  PI.  110. 

ley,  41  Ind.  489.     •  (h)  R.  S.  1881,  §  269. 

(f)  Potter  v.  Smith,   36   Ind.  231-        (i)  Tate  v.  The  O.  &  M.  R.  R.  Co., 
236;  Frenzell    v.    Miller,   37    Ind.   1;     10  Ind.  174. 

Durham  v.  Hall,  67  Ind.  123. 


22  PARTIES.  [CHAP. 

where  there  is  one  common  interest  among  all  the  plaintiffs  centering 
in  the  point  in  issue  in  the  cause.  "•"  • 

It  is  important  that  the  pleader,  before  bringing  his  suit,  should  de- 
termine who  are  proper  parties  to  be  made  plain tin's.  The  same  care 
is  not  required  in  selecting  parties  defendant.  If  too  many  defendants 
are  joined,  the  plaintiff  fails  to  recover  as  against  the  defendant  im- 
properly joined,  but  such  failure  in  no  way  affects  his  right  to  recover 
against  those  defendants  against  whom  he  has  a  cause  of  action. 

But  where  too  many  plaintiffs  are  joined,  and  no  cause  of  action  is 
shown  in  the  complaint  as  to  any  one  of  the  plaintiffs,  it  is  fatal,  not 
only  as  to  his  right  to  recover,  but  is  equally  fatal,  where  there  is  a  de- 
murrer to  the  complaint,  as  to  all  the  plaintiffs  with  whom  he  has  been 
improperly  joined.  The  result  is  just  the  same  as  it  would  be  if  a  nec- 
essary party  plaintiff  had  not  been  joined.  This  exposition  of  the  law 
is  placed  upon  the  ground  that  where  several  parties  join  as  plaintiffs 
the  complaint  must  show  a  joint  cause  of  action  in  them.  Under  this 
construction,  it  would  make  no  difference  if  the  complaint  did  disclose  a 
cause  of  action  in  all  of  the  plaintiffs  if  the  cause  of  action  was  not 
the  same  as  to  each.  Such  a  cause  of  action  must  be  shown  in  all  of 
the  plaintiffs  as  would  entitle  them  to  join  as  plaintiffs  under  the 
statute. k 

In  case  any  person  who  is  a  necessary  party  plaintiff  in  bringing  an 
action  refuses  to  join  in  the  action,  he  may  be  made  a  defendant,  the 
reason  therefor  being  stated  in  the  complaint.1 

38.  Assignees  may  sue. — The  assignee  of  any  claim  arising  out 
of  contract  is  authorized  by  the  statute  to  sue,  but  where  the  assign- 
ment is  not  in  writing,  the  assignor  must  be  made  a  party  defendant 
to  answer  as  to  the  assignment  or  his  interest  in  the  subject  of  the 
action. m  This  provision  does  not  apply  to  actions  to  recover  real  es- 
tate and  damages  for  its  detention.  (1) 

But  the  assignee  in  such  case  takes  subject  to  any  set-off  or  other 
defense  existing  at  the  time  of  or  before  notice  of  the  assignment, 
except  in  actions  on  negotiable  promissory  notes  and  bills  of  exchange, 
transferred  by  indorsement  in  good  faith  and  upon  good  consideration 
before  due." 

The  latter  clause  of  the  above  section  has  been  construed  by  the 
supreme  court  to  apply  only  to  such  notes  as  are  made  negotiable  by 
statute  as  inland  bills  of  exchange.0  Notes  negotiable  as  inland  bills 

(j)  Goodnight  v.  Goar,  30  Ind.  418;  (1)  Shoemaker  v.  The  Board,  etc.,  36 
Shoemaker  v.  The  Board,  etc.,  36  Ind.  Ind.  175. 

175;  Heagy  v.  Black,  90  Ind.  534;  (m)  K.  S.  1881,  §  276;  Story  v. 
Jones  v.  Cardwell,  98  Ind.  331.  Downing,  34  Ind.  300. 

(k)  Berkshire  v.Shultz,  25  Ind.  523;         (1)  Cartwright  v.  Yaw,  100  Ind.  119. 
Man   et   ux.  v.  Marsh,   35    Barb.  68;         (n)  K.  S.  1881,  §  276. 
Goodnight  v.  Goar,  30  Ind.  418.  (o)  Sayers  v.  Linkhart,  25  Ind.  145. 


IV.]  PARTIES.  23 

of  exchange  are  such  as  are  made  payable  "in  a  bank  in  this 
state.  "P 

It  follows,  from  these  authorities,  that  the  question  whether  the  prom- 
issory note  assigned  is  due  or  not,  can  make  no  difference  with  reference 
to  the  right  of  the  maker  to  his  defense,  except  when  the  note  is  upon 
its  face  made  payable  in  a  bank  in  this  state.  But  in  every  case  of  as- 
signment it. is  important,  in  order  to  cut  off  any  right  of  the  maker  to 
set  up  a  defense  by  way  of  set-off,  or  otherwise,  acquired  after  the 
assignment,  that  notice  shall  be  given  at  once  to  the  maker  that  such 
assignment  has  been  made.  It  is  such  defenses  as  existed  in  favor 
of  the  maker  "  before  notice  of  assignment,"  and  not  before  the  assign- 
ment that  may  be  set  up  against  the  assignee.*1 

And  the  burden  of  proof  is  upon  the  assignee  to  show  that  notice 
of  the  assignment  Avas  given  prior  to  the  acquisition  by  the  maker  of 
the  defense  set  up,  though,  as  a  question  of  pleading,  the  rule  is  the 
other  way.r 

WHAT   MAY   BE  ASSIGNED. 

39.  The  statute. — Our  statute,  with  reference  to  what  may  be  as- 
signed, is  very  general  in  its  terms.   .  It  provides  that  all  promissory 
notes,  bills  of  exchange,  bonds,  or  other  instrument  in  writing  signed 
by  any  person  who  promises  to  pay  money  or  acknowledges  money  to 
be  due,  or  for  the  delivery  of  a  specific  article,  or  to  convey  property, 
or  to  perform  any  stipulation  therein  mentioned,  shall  be  negotiable  by 
indorsement  thereon,  so  as  to  vest  the  property  thereof  in  each  indorsee 
successively.8 

It  will  be  seen  that  this  statute  only  authorizes  the  transfer  by  assign- 
ment of  instruments  in  ivriting  signed  by  the  person  promising,  and  would 
not  include  accounts,  judgments,  and  the  many  other  instruments  not 
signed  by  the  promisor,  which  would  give  to  the  original  holder  a  right 
of  action. 

40.  Assignment  of  judgments. — We  have  another  statute,  how- 
ever, which  provides  for  the  assignment  of  judgments  for  the  recovery 
of  money  before  a  court  of  record.     In  order  to  pass  the  legal  title 
thereto,  the  assignment  must  be  made  on  or  attached  to  the  judgment, 

(p)  K.  S.   1881,    §5506;    Eominger  (q)  E.  S.  1881,  §5503;  post,  §§  413, 

x.  Keyes,  73  Ind.  375;  Porter  r.  Hal-  414,  649. 

loway,  43  Ind.  35;  Gillaspy  v.  Kelley,  (r)  Savers  v.  Linkhart,  25  Ind.  145; 

41  Ind.  158;  Hunt  r.  Standart,  15  Ind.  Rawlings  'v.  Fisher,  24  Ind.  52;  Hays 

33;    Rawiings  r.  Fisher,  24   Ind.  52;  r.   Fitch,  47  Ind.  21-24 ;    post,  §§  649, 

Sayers  v.  Linkhart.  25  Ind.  145;  Park-  650. 

inson  v.  Finch.  45  Ind.  122.  (s)  R.  S.  1881,  §  5501. 


24  PARTIES.  [CHAP. 

and  must  be  attested  by  the  clerk  of  the  court  or  the  justice  of  the 
peace  before  whom  the  judgment  was  recovered.1 

The  statute  authorizes  the  assignee  to  prosecute  any  action  which  the 
plaintiff  may  have  thereon,  but  execution  must  issue  in  the  name  of 
the  plaintiff  for  the  use  of  the  assignee. u 

At  common  law  the  assignment  of  a  judgment  gave  the  assignee  no 
authority  to  proceed  upon  the  judgment  in  his  own  name.v 

Under  the  above  statute,  it  has  been  held  that  the  owner  of  a  part 
of  a  judgment  may  assign  his  interest  therein,  and  the  assignee  may 
unite  with  the  owners  of  the  residue  in  an  action  to  enforce  the  same.w 

And  that,  although  the  legal  title  to  the  judgment  only  passes  by  an 
assignment  in  writing,  there  may  be  an  equitable  assignment  by  parol.* 

The  equitable  oAvner  of  a  judgment  may  sue  thereon,  but  an  assign- 
ment by  parol,  although  it  has  the  effect  to  pass  the  equitable  title  to 
the  assignee,  will  have  no  force  as  against  an  "  innocent  purchaser." 

The  subsequent  transfer  to  an  innocent  purchaser  would  vest  the  le- 
gal title  in  him,  notwithstanding  the  prior  equitable  transfer.y 

41.  Vendor's  lien. — The  lien  of  the  vendor  of  land,  for  the  pur- 
chase-money, is  assignable.     And  where  a  note  has  been  taken  for  the 
purchase-money  the  lien  passes  by  the  mere  assignment  of  the  note.2 

42.  Accounts. — We  have  no  statute  authorizing  the  assignment 
of  accounts,  but  it  has  been  decided  by  the  supreme  court  that  an  ac- 
count may  be  so  assigned  as  to  vest  in  the  assignee  an  equitable  inter- 
est which  will  authorize  him  to  sue  in  his  own  name.8 

43.  Promissory   notes. — A  part  interest  in  a  promissory  note 
may  be  assigned  in  equity. b 

The  assignment  of  a  note  secured  by  mortgage  carries  with  it  the 
mortgage  lieu,  and  where  several  notes  are  secured  by  the  same  mort- 

(t)  R.  S.  1881,  §  603.  (z)  Fisher  v.  Johnson,  5  Ind.  492; 

(u)  K.  S.  1881,  §§  605,  606;  Reid  v.  Lugow  v.  Badollet,  1   lilkf.  416;  Perry 

Ross,  15  Ind.  265.  v.  Roberts,  30  Ind.  244;  Kern  v.  Hu- 

(v)  Reid  v.  Ross,  15  Ind.  265.  zelrig,  ll  Ind.  443;  Brumfield  v.  Pal- 

(w)  Lapping  v.  Duffy,  47  Ind.  51;  mer,  7  Blkf.  227;  Johns  v.  Sewell.  33 

Wood  v.  Wallace,  24  Ind.  226.  Ind.  1. 

(x)  Scoby   v.  Finton,  39   Ind.  275;         (a)  Overstreet  v.  Freeman,  12  Ind. 

I'.urson  v.  Blair,  12  Ind.  371;  Kelley  390;  Swails  v.  Coverdill,  17  Ind.  337; 

o.  Love,  35  Ind.  106;  post,  $  662,  663.  Bottrd  of  Com'rs  v.  Jameson,  86  Ind. 

(y)  Burson   v.    Blair,    12   Ind.  371;  154. 

Mewhester  v.  Price,  11  Ind.  199;  Kel-        (b)  Groves  ».  Ruby,  21  Ind.  418;  2 

ley  v.  Love,  35  Ind.  106.  Story's  Equity  Jur.,  £  1044. 


IV.]  PARTIES.  25 

gage  the  assignment  of  one  is  an  equitable  assignment  pro  tanto  of  the 
mortgage.0 

Where  an  assignment  was  made  upon  a  mortgage,  of  the  mortgage 
"and  the  notes  described  therein,"  it  was  held  that  the  legal  title  to 
the  notes  did  not  pass  by  such  assignment,  on  the  ground  that  the  as- 
signment, to  pass  the  title,  must  have  been  indorsed  on  the  notes  or 
some  paper  attached  thereto,  but  that  such  assignment  did  have  the 
effect,  under  the  code,  to  convey  an  equitable  title  authorizing  the  as- 
signee to  sue  in  his  own  name.d 

The  assignment  of  the  mortgage  alone,  without  the  assignment  of 
the  debt,  passes  no  title.  It  is  a  mere  nullity.6 

44.  What  not  assignable. — It  has  been  held  that  neither  a  li- 
cense to  sell  intoxicating  liquors,  a  contract  for  the  maintenance  of  the 
poor,  indentures  of  apprenticeship,  nor  the  office  of  state  printer  are 
assignable/ 

45.  Right  of  action  for  tort. — In  the  case  of  Patterson  v.  Craw- 
ford, 12  Ind.  241,  it  was  held  that  section  3  of  the  codeg  does  not  au- 
thorize nor  does  it  forbid  the  assignment  of  a  thing  not  arising  out  of 
contract.     Davison,  J.,  in  delivering  the  opinion  of  the  court,  said: 
"  The  third  defense  assumes  that,  though  the  defendant  may  be  liable 
to  Armstrong  by  reason  of  the  false  imprisonment,  still  his  right  of 
action  could  not  be  assigned  to  the  plaintiff.     The  code  provides  that 
'  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  in- 
terest ;  but  this  section  shall  not  be  deemed  to  authorize  the  assignment 
of  a  thing  in  action  not  arising  out  of  contract.'     This  section  does  not 
authorize  nor  does  it  forbid  the  assignment  of  a  thing  not  arising  out 
of  contract.     It  adopts  the  equity  rule  which  required  every  action  to 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  and  simply  de- 
clares that  that  section  shall  not  be  deemed  to  authorize  such  assign- 
ments.    An  assignee  takes  precisely  the  same  interest  in  the  assign- 
ment of  every  species  of  demand,  either  at  law  or  equity,  as  he  did 
before. the  new  code.     Hence  a  demand  capable  of  assignment  before 
the  code,  so  as  to  invest  the  assignee  with  the  real  interest,  is  such  a 

(c)  Stanley  v.  Beatty,  4   Ind.  134;  (f)  Godfrey  v.  The   State,    5    Blkf. 
Hough  v.  Osborn,  7  Ind.  140;  Harris  151;  Burger  v.  Rice,  3  Ind.  125;  Ellis 
.-.  Harlan,  14  Ind.  439.  v.  The  State,  4  Ind.  1. 

(d)  French  v.  Turner,  15  Ind.  59.  (g)  2  R.  S.  1876,  p.  33;  K.  S.  1881, 

(e)  Hubbard   v.   Harrison,   38   Ind.  §251. 
323-340;  Johnson  v.  Connett,  29  Ind. 

59  ;  Hough  v.  Osborn,  7  Ind.  140. 


26  PARTIES.  [CHAP. 

demand  as  will  now  pass  by  assignment  so  as  to  give  the  assignee  a 
right  of  action. 

"Mere  personal  torts,  such  as  slander,  assault  and  battery,  and  the 
like,  which  die  with  the  party  and  do  not  survive  to  his  personal  repre- 
sentatives, are  not  assignable.11 

But  in  view  of  a  statutory  rule  of  procedure,  identical  with  the  one 
just  recited,  it  has  been  held  that  torts  for  the  taking  and  conversion 
of  personal  property,  and  generally  such  a  right  of  action  for  a  tort  as 
would  survive  to  the  personal  representatives,  may  be  assigned  so  as  to 
pass  an  interest  to  the  assignee,  which  he  can  assert  in  his  own  name 
in  a  civil  action,  as  he  formerly  might  in  the  name  of  the  assignor  at 
law.1" 

46.  Chattels   not   in   possession. — Chattels  not  in  possession 
may  be  assigned.     Such  assignments  are  usually  made  by  the  assign- 
ment of  bills  of  lading,  or  other  evidences  of  the  right  of  the  assignor 
to  the  possession  of  the  goods  therein  named,  and  the  assignment  of 
the  bills  of  lading  vests  the  title  to  the  property  in  the  assignee.-" 

47.  Certificates  of  purchase  and  guaranties. — A  certificate 
of  purchase  given  by  a  sheriff  on  the  sale  of  real  estate  on  execution 
is  assignable,  and  it  has  been  held  that  a  contract  of  guaranty  may  be 
assigned. k 

ACTIONS   BY   AND   AGAINST   PUBLIC   OFFICERS. 

48.  Township  trustees. — There  are  in  each  township  two  cor- 
porations— a  school  township  and  a  civil  township.     The  trustee  of 
the  civil  township  in  which  he  resides  is  also  the  trustee  of  the  school 
township.     The  same  person  acts  in  different  capacities,  and  must  sue 
and  be  sued  in  one  or  the  other  capacity  according  to  the  purpose  for 
which  the  action  may  be  brought.1     In  Carmichael  v.  Lawrence,  the 
suit  was  brought  against  the  civil  township  to  recover  money  alleged 
to  be  due  lor  building  a  school-house.     The  court  say:     "There  are 

(h)  Citing  Comegys  v.  Vasse,  1  Pet.  (k)  K.  S.  1881,  §  766,   Cole  v.  The 

213.  Merchants'  Bank,  60  Ind.  355. 

(i)  Citing  Robinson  v.  Weeks,  6  (1)  R.  S.  1881,  g§  5990,  4437,  4438; 
How.  Pr.  101 ;  Hodgman  v.  The  West-  Wright  v.  Stockman,  59  Ind.  65 ;  Car- 
em  Railroad  Corporation,  7  Id.  493;  michael  v.  Lawrence,  47  Ind.  55} : 
Vansant,  108.  McLaughlin  v.  Shelby  Township,  5:2 

(j)   Law  v.  Hatcher,  4    Blkf.    364;  Ind.  114;   Sims   v.  McClure,  52   Ind. 

Addison  on  Con.  205;  The  Union,  etc.,  267;    Jam's   v.   Shelby   Township,  62 

v.  Yeager,  34    Ind.  1-15;    R.  S.  1881,  Ind.  257. 
I  5501. 


rv.]  PARTIES.  27 

two  corporations  in  Greene  county  with  almost  the  same  name.  One 
is  Center  township  of  Greene  county;  the  other  is  Center  School  town- 
ship of  Greene  county.  The  first  is  denominated  a  civil  township, 
and  the  second  a  school  township.  This  distinction  is  made  in  the 
school  law.  '  Each  civil  township  in  the  several  counties  in  this  state 
is  hereby  declared  a  township  for"school  purposes,  and  the  trustee  for 
such  township  shall  be  trustee,  treasurer,  and  clerk  for  school  purposes.' 
It  must  be  contemplated  that  the  funds,  etc.,  of  these  two  corpora- 
tions shall  be  kept  separate.  It  is  as  an  officer  of  the  school  township, 
and  not  as  an  officer  of  the  civil  township  that  the  trustee  has  power  to 
levy  a  tax  for  the  erection  of  school-houses,  and  to  expend  the  same 
for  that  purpose.  We  think  it  must  follow,  that  it  is  as  trustee  of  the 
school  township,  and  not  as  trustee  of  the  civil  township  that  the  trus- 
tee must  contract  Tor  the  building  of  school-houses.  We  do  not  think 
the  trustee  of  the  civil  township  can  legally  contract  for  the  building 
of  a  school-house  and  make  the  civil  township  liable  therefor.  In  the 
case  under  consideration,  the  action  is  against  the  civil  township  seek- 
ing to  render  it  liable  for  the  cost  of  constructing  the  school-house, 
and  not  against  the  school  township,  the  corporation  which  should  be 
liable  if  any  one." 

49.  On  bonds  payable  to  the  state. — The  statute   provides. 
"Actions  on   official  bonds  and  bonds  payable  to  the  state  shall  be 
brought  in  the  name  of  the  State  of  Indiana,  upon  the  relation  of  the 
party  interested.""1     In  this  class  of  actions  the  state  is  not  the  "  real 
party  in  interest,"  but  the  person  upon  whose  relation  the  action  is 
brought.11 

50.  On  bonds  of  public  officers. — The  general  rule  is  that  an  ac- 
tion upon  the  official  bond  of  a  public  officer  must  be  brought  in  the  name 
of  the  state  on  the  relation  of  the  person  who  has  been  injured  by  the 
breach  of  such  bond.     There  are  certain  exceptions  that  will  be  no- 
ticed hereafter.    Jt  will  be  found,  it  is  believed,  in  all  of  the  cases  where 
a  different  rule  has  prevailed  that  it  is  because  of  some  statute  providing 
specifically  on   whose   relation  the  action  shall  be  brought.     Where 
there  is  a  statute  of  this  state  providing  what  person  or  officer  shall  bring 
the  action,  the  suit  should  be  brought  not  in  his  name  alone,  but  in  the 
name  of  the  state  on  the  relation  of  such  person.     In  the  absence  of 
any  such  statute  the  real  party  in  interest  must  be  made  the  relator.0 

(ra)  R.  S.  1881,  §  253.  der  v.  The  State,  21  Ind.  77;  Yater  v. 

(n)  Neal  v.  The  State,  49  Ind.  51 ;     The  State,  58  Ind.  299. 
Taggart  v.  The  State,  49  Ind.  42;  Sny-         (o)  Yanarsdell  v.  The  State,  65  Ind. 

176;  Hadley  v.  The  State,  66  Ind.  271- 


28  PARTIES.  [CHAP. 

51.  On  bond  of  county  treasurer. — It  is  frequently  a  matter 
of  much  difficulty  to  determine  who  should  be  made  relator  in  actions 
brought  upon  official  bonds,  and  the  adjudicated  cases  in  this  state  are 
not  such  as  to  remove  the  difficulty. 

In  an  action  on  the  official  bond  of  a  county  treasurer  for  a  failure 
to  pay  over  money  in  his  hands,  as  treasurer,  belonging  to  a  township, 
it  has  been  held  in  a  late  case  that  the  auditor  of  the  county  is  the 
proper  relator,  and  that  a  suit  can  not  be  maintained  in  the  name  of 
the  state  on  relation  of  the  township  which  has  been  the  loser. p 

This  would  seem  to  be  in  conflict  with  the  rule  that  the  relator  must 
be  the  real  party  in  interest.  The  township  has  lost  the  money,  and  is 
beyond  question  the  real  party  in  interest.  But  the  decision  is  based 
upon  §§  125-127  and  128,  1  G.  &  H.  102,  which  provide  for  settle- 
ments and  payment  of  money  by  such  treasurers,  and  that  in  case  they 
fail  to  make  such  payments,  the  county  auditor,  on  being  instructed  by 
the  auditor  of  state  or  board  of  county  commissioners,  shall  cause  suit 
to  be  brought  against  such  county  treasurers  and  their  sureties. q 

It  was  also  decided  in  Pepper  v.  The  State,  that  in  actions  brought 
to  recover  money  due  to  the  state  from  a  county  treasurer  and  his 
sureties,  the  auditor,  and  not  the  treasurer  of  state  should  be  the 
relator/ 

52.  Commissioner  to  sell  real  estate. — An  action  on  the  bond 
of  a  commissioner  to  sell  real  estate  in  a  partition  proceeding  should 
be  brought  on  the  relation  of  the  owners  of  the  land.9 

53.  On  bond  of  township  trustee. — An  action  on  the  official 
bond  of  a  township  trustee  for  failure  to  pay  over  money  at  the  ex- 
piration of  his  term  of  office,  must  be  brought  on  the  relation  of  his 
successor  in  office,  and  can  not  -be  brought  in  the  name  of  the  town- 
ship of  which  he  was  the  trustee.1 

54.  When  the  state  real  party  in  interest. — In  an  action  on 
a  bond  made  payable  to  the  state,  where  the  obligation  is  to  the  state, 
and  no  individual  has  an  interest  other  than  such  an  interest  as  is 
common  to  all,  no  relator  is  necessary.     The  action  in  such  case  may 

(p)  Taggart   v.   The   State,    etc.,   49  (s)  Maxedon  v.  The  State,  24  Ind. 

Ind.  42.  370;  Stanton  v.  The  State,  74  Ind.  503; 

(q)  Snyder  v.  The  State,  21  Ind.  77;  Owen  v.  The  State,  25  Ind.  107. 

Neal  v.  The  State,  49  Ind.  51.  (t)  Hawthorn  v.  The  State,  48  Ind. 

(r)  Pepper   v.   The    State,   22   Ind.  464;   Dishon  v.  The  State,  19  Ind.  255. 
399 ;  The  State  ex  rel.,  etc.,  v.  Pepper, 
31  Ind.  70 


rv.]  PARTIES.  29 

be  brought  in  the  name  of  the  state  alone,  she  being  the  real  party  in 
interest.11 

55.  In  actions  for  money  due  the  state  in  the  hands  of 
public  officer. — The  following  provision  is  a  part  of  the  act  for  the 
settlement  of  decedent's  estates : 

"  SEC.  2415.  If,  at  the  expiration  of  two  years  from  the  final  settle- 
ment of  an  estate,  no  proof  of  heirship  or  title  by  will  shall  have  been 
made  as  to  all  or  any  portion  of  the  surplus,  the  court  shall  direct  the 
same  to  be  paid  to  the  county  treasurer,  to  be  by  him  paid  to  the  treas- 
urer of  state,  who  shall  enter  the  same  on  his  books  to  the  credit  of 
the  unknown  heirs  of  the  decedent."  v 

Section  145  of  the  decedents  act  of  1852  provided  that,  if  an  "  ad- 
ministrator fail  to  pay  into  court  any  money  belonging  to  such  estate 
of  which  there  are  no  known  heirs,  the  court  shall  remove  him  from 
his  trust  aud  appoint  a  successor,  who,  having  qualified  and  given  bond 
according  to  law,  shall  bring  suit  against  such  delinquent  on  his  bond, 
which  suit  the  prosecuting  attorney  of  the  proper  court  shall  prose- 
cute."w  But  this  provision  is  not  contained  in  the  act  of  1881.  It  is 
provided,  however,  that  "Any  administrator  failing  to  pay  into  court 
any  moneys  received  on  account  of  the  rent  or  sale  of  real  estate  of 
unknown  heirs  or  devisees,  when  required  to  do  so  by  the  provisions 
of  this  act,  or  by  the  court,  shall  be  liable  on  his  bond  therefor,  and, 
in  the  absence  of  such  owners,  suit  on  the  bond  shall  be  prosecuted  by 
the  prosecuting  attorney,  who  shall  be  allowed  compensation  for  his 
services  out  of  the  damages  recovered."  x 

It  is  further  provided,  ' '  that  the  clerk  of  the  circuit  court  shall  report 
to  the  auditor  of  state,  within  thirty  days  after  the  same  is  paid  into 
court,  the  amount  of  money  belonging  to  unknown  heirs  which  has 
been  directed  to  be  paid  to  the  county  treasurer,  with  the  names  of  the 
decedent  and  the  executor  or  administrator,  and  such  auditor  shall  enter 
the  same  on  his  account  against  the  treasurer  of  state,  who  shall  order 
suit  to  be  brought  against  all  officers  on  their  bonds  who  are  delinquent 
in  the  management  of  the  same."y 

It  is  not  at  all  clear  in  whose  name  suits  should  be  brought  under 
either  of  the  section?.  Under  section  145  of  the  original  decedents 
act,  where  the  administrator  or  executor  was  removed  and  a  successor 
appointed,  it  was  made  the  duty  of  the  successor  to  sue  on  the  bond, 
and  there  is  no  reason  why  such  successor  should  not  be  the  relator 
without  any  such  direct  provision.  The  suit,  in  this  case,  should  be 

(u)  Fry  v.  The  State,  etc.,  27  Tnd.         (w)  2  R.  S.  1876,  p.  545,  §  145. 
.348;  Shane  v.  Francis,  30  Ind.  92.  (x)  R.  S.  1881.  g  2418. 

(v)  R.  S.  1881,  \  2415.  (y)  R.  S.  1881.  \  2416. 


30  PARTIES.  [CHAP. 

brought  in  the  name  of  the  state  on  the  relation  of  such  administrator. 
We  have,  also,  the  following  provision : 

"  SEC.  1143.  Whenever  any  property  shall  escheat  or  be  forfeited 
to  the  state  for  its  use,  the  legal  title  shall  be  deemed  to  be  in  the  state 
from  the  time  of  the  escheat  or  forfeiture ;  and  an  information  may  be 
filed  by  the  prosecuting  attorney  in  the  circuit  court  for  the  recovery 
of  the  property,  alleging  the  ground  on  which  the  recovery  is  claimed, 
and  like  proceedings  and  judgment  shall  be  had  as  in  a  civil  action  foi 
the  recovery  of  property."8 

The  statute  provides  that  "the  estate  of  a  person  dying  without 
kindred  capable  of  inheriting  shall  escheat  to  the  state."  a 

The  question  of  the  right  of  the  prosecuting  attorney  to  sue  must 
depend  upon  the  question  as  to  the  time  Avhen  such  moneys  escheat  to 
the  state.  The  statute  provides  that  "if  no  heirs  appear  to  claim  the 
surplus  belonging  to  the  estate,  the  court  shall  direct  it  to  be  paid  over 
to  the  county  treasury." 

'  From  this  time,  at  least,  the  property  has  escheated  to  the  state, 
and,  under  section  1143,  the  prosecuting  attorney  might  bring  suit 
against  the  officer  failing  to  pay  the  money  into  the  treasury.  The 
same  right  to  sue  may  be  exercised  by  the  succeeding  administrator,  as 
against  the  executor  or  administrator,  where  he  fails  to  pay  the  money 
into  court  and  has  been  removed. 

As  we  have  Been,  by  section  2416,  after  the  money  has  been  paid 
into  court,  the  treasurer  of  state  shall  order  suit  to  be  brought  against 
all  officers  on  their  bonds  who  are  delinquent  in  the  management  of 
the  same.  This  section  does  not  authorize  suit  to  be  brought  by  the 
state  treasurer,  but  that  he  shall  order  suit  brought.  The  statute  of 
which  this  section  is  a  part  contains  no  authority  for  any  one  to  sue  in 
such  case. 

Under  the  section  cited,  from  the  act  relating  to  prosecuting  attorneys, 
the  suit  might  be  brought  on  the  relation  of  the  prosecuting  attorney. 
There  is  another  statute  which  gives  the  attorney-general  of  the  state 
the  right  to  sue  for  and  collect  any  moneys  "  paid  to  any  public  officer 
of  the  state,  or  any  county  officer,  or  other  person,  for  unclaimed  wit- 
ness fees,  court  docket  fees,  license,  money  unclaimed  in  estates,  or 
guardianship,  fines  or  forfeitures,  or  moneys  that  escheat  to  Hie  state  for 
want  of  heirs,  or  from  any  other  source,  where  the  same  is  by  any  law  re- 
quired to  be  paid  to  the  state,  or  any  officer  in  trust  for  the  state ;  and 
in  all  cases  where  tlie  officers,  whose  duty  it  shall  be  to  collect  tfie  same,  shall 
fail,  neglect,  or  refuse,  for  twelve  months  after  the  cause  of  action  in  favor 
of  tlie  state,  sliatt  have  accrued,  or  shall  fail,  neglect,  or  refuse  to  sue  for  and 

(z)  K.  S.  1881,  §  1143.  (a)  K.  S.  1881,  §  2478. 


IV.]  PARTIES.  31 

proceed  to  recover  any  property  belonging  to,  or  which  may  escheat  to  the 
state."  b 

This  section  expressly  provides  that  the  right  of  the  attorney-general 
to  sue  shall  depend  upon  the  failure  of  the  proper  officers,  for  two 
years,  to  bring  the  necessary  suit  or  collect  the  money. 

So  if  the  prosecuting  attorney  should  fail  for  two  years  to  bring  suit 
to  recover  money  that  has  escheated  to  the  state,  the  action  might  be 
brought  by  the  attorney-general. 

In  the  case  of  Fuhrer,  Adm'r,  v.  The  State  ex  rel.  The  Attorney- 
General,0  the  question  of  the  right  of  the  attorney-general  to  sue  under 
this  section  was  presented  to  the  supreme  court. 

The  suit  was  brought  on  the  relation  of  the  attorney -general  against 
the  administrator,  whose  final  report  showed  money  in  his  hands,  and 
the  same  had  not  been  claimed  for  two  years  after  the  final  settlement. 
No  order  had  been  made  by  the  proper  court  removing  the  adminis- 
trator, and  no  successor  had  been  appointed.  It  was  claimed  by  the 
appellant,  that  in  order  to  give  the  attorney-general  the  right  to  sue, 
the  complaint  must  show  that  the  administrator  who  was  in  default 
had  been  removed  and  a  successor  appointed,  and  that  such  successoi 
had  failed  for  twelve  months  to  bring  suit  to  collect  the  money. 

Howk,  J.,  in  delivering  the  opinion,  said  :  "In  this  cause  it  is  ad- 
mitted that  the  final  settlement  of  the  estate  of  appellant's  intestate 
was  made  on  the  12th  day  of  July,  1867.  Two  years  afterward,  or  on 
the  12th  day  of  July,  1869,  the  state's  cause  of  action  or  right  to 
the  money  accrued,  under  section  143  above  cited,  of  the  act  providing 
for  the  settlement  of  decedents, estates.  The  judge  of  the  proper  court, 
the  officer  whose  plain  legal  duty  it  was  to  direct  and  see  that  the  surplus  of 
said  estate  was  then  paid  over  to  Hie  county  treasurer  of  Posey  county  by  the 
appellant,  failed  and  neglected  to  discharge  such  duty.  Afterwards 
more  than  five  years  elapsed,  and  still  the  judge  of  the  proper  court, 
the  officer  whose  plain  legal  duty  we  have  already  stated,  still  failed  and 
neglected  to  discharge  such  duty,  and  also  still  failed  and  neglected  to  re- 
move the  appellant  from  his  said  trust  and  appoint  his  successor  therein, 
as  it  was  also  the  plain  legal  duty  of  such  officer  to  do,  under  the  require- 
ments of  said  section  145  before  cited.  When  these  facts  came  to  the 
knowledge  of  the  attorney-general  of  the  state,  he  would  have  been 
derelict  in  his  plain  legal  duty,  as  we  understand  his  duty  under  the 
law,  if  he  had  not  forthwith  instituted  and  vigorously  prosecuted  to  a 
successful  issue  this  action  against  the  appellant." 

It  will  be  noticed  that  the  right  of  the  attorney-general  to  bring 
the  action,  is  based  solely  upon  the  assumed  failure  of  the  judge  of  the 

^b)  R.  S.  1881,  §  5Gti8.  (c)  Fuhrer  v.  The  State,  55  Ind.  150. 


H2  PARTIES.  [CHAP. 

proper  court  to  perform  his  duty  ;  and  the  "  plain  legal  duty"  of  the 
judge,  as  stated  in  the  opinion,  shows  that  the  learned  judge  misappre- 
hended the  terms  of  the  statute.  There  was  no  statute  making  it  the 
duty  of  the  judge  to  "direct  and  see  that  Hie  surplus  of  said  estate  was 
paid  over  to  the  county  treasury  by  the  appellant." 

On  the  contrary,  the  only  duty  imposed  upon  the  judge,  by  the  sec- 
tion referred  to,  in  case  the  administrator  failed  to  pay  the  money  int^ 
court,  not  into  the  county  treasury,  was  to  order  his  removal  and  ap- 
point a  successor.  If  such  successor  should  fail  for  twelve  months  TO 
sue,  then  the  right  of  the  attorney-general  to  maintain  the  action  would 
be  clear. 

The  duty  of  the  court  to  direct  the  surplus  of  the  estate  to  be  paid 
into  the  county  treasury,  as  required  by  section  143,  could  only  arise 
upon  the  money  being  paid  into  court.  There  was  no  law  authorizing  the 
administrator  to  pay  the  money  into  the  county  treasury.  Section  146 
of  the  same  act  makes  this  clear.  It  made  it  the  duty  of  the  judge  to 
report  to  the  auditor  of  state,  within  thirty  days  after  the  same  is  paid 
into  court,  the  amount  of  money  belonging  to  unknown  heirs,  which  has 
been  directed  to  be  paid  to  tlie  county  treasurer. 

The  judge  of  the  proper  court  could  not  direct  the  money  to  be 
paid  to  the  treasurer  until  it  was  paid  into  his  court,  therefore  the  de- 
cision cited  is  based  upon  a  misconception  of  the  statute.  But  if  the 
learned  judge  were  right  in  this,  still  the  failure  of  the  judge  to  per- 
form the  duty  stated  could  not  authorize  the  attorney-general  to  sue. 
It  is  only  upon  the  failure  for  twelve  months  of  the  officer  whose  duty 
it  is  to  collect  such  moneys  to  perform  his  duty  that  the  attorney-general 
is  authorized  to  act.d  And  the  judge  of  the  court  was  not  the  officer 
whose  duty  it  was  to  collect  the  money. 

The  right  of  the  prosecuting  attorney  to  sue,  and  his  failure  to  per- 
form his  duty,  is  not  considered.  As  we  have  seen,  where  the  admin- 
istrator had  not  been  removed,  the  suit  should  have  been  brought  by 
the  prosecuting  attorney,  and  if  the  right  of  the  attorney-general  to 
sue  had  been  based  upon  the  failure  of  the  prosecuting  attorney  to  per- 
form that  duty,  the  conclusion  reached  by  the  court  must  have  been 
the  same  without  the  necessity  of  a  misconstruction  of  the  statute.  If 
the  prosecuting  attorney  of  the  proper  county  had  failed  for  twelve 
months  to  take  steps  to  collect  the  money,  the  attorney-general  would 
have  the  right  to  sue,  but  as  his  right  to  sue  is  dependent  upon  such 
failure,  the  complaint  should  have  alleged  the  fact. 

id)  R.  S.  1831,  §  5668.     The  present    payment  of  the  money  to  the  county 
statute  makes  it  the  duty  of  the  clerk     treasurer.     R.  S.  1881,  §  2416. 
to-  notify  the  auditor   of  state  of  the 


IV.]  PARTIES.  33 

In  the  case  of  Moore  v.  The  State  ex  rel.  Attorney-General,  the  right 
of  the  attorney-general  to  sue  for  money  due  the  state,  on  account  of 
unclaimed  moneys  in  estates  and  other  moneys,  is  again  affirmed.6 

The  question  of  the  right  of  the  attorney-general  to  bring  suit  for 
money  due  the  state,  and  charge  fees  and  commissions  therefor,  came 
again  before  the  supreme  court  in  the  late  case  of  the  State  ex  rel.  At- 
torney-General v.  Denny. 

In  the  very  able  and  exhaustive  opinion  delivered  by  Howk,  J. ,  he 
says :  "  It  is  the  true  intent  arid  meaning  of  this  supplemental  act,  as 
we  construe  its  provisions,  that  the  attorney -general  of  this  state  shall 
be  and  is  thereby  authorized  to  collect  at  once,  with  or  without  suit,  all 
amounts  paid  to  any  public  officer  of  the  state,  or  any  county  officer, 
or  other  person,  and  not  paid  by  such  officer  or  person  into  the  proper 
treasury,  as  required  by  law,  for  unclaimed  witness  fees,  court  docket 
fees,  licenses,  money  unclaimed  in  estates  or  guardianships,  fines  or 
forfeitures,  or  moneys  that  escheat  to  the  state  for  the  want  of  heirs,  and 
all  amounts  due  from  any  other  source,  where  the  same  was,  by  ariy 
law,  required  to  be  paid  to  the  state  or  any  officer  in  trust  for  the  state  ; 
except  as  to  fines,  forfeitures,  and  property  escheating  or 'belonging  to 
the  state,  which  he  may  not  collect,  with  or  without  suit,  or  sue  for  the 
recovery  of,  until  after  the  expiration  of  one  year  from  the  time  the 
cause  of  action  has  accrued  therefor,  and  then  only  in  the  event  that  the 
proper  prosecuting  attorney  has  failed,  neglected  or  refused,  for  and  during 
the  said  year,  to  collect  the  same,  or  to  institute  proceedings  for  the  recovery 
thereof." f 

This  suit  was  brought  to  obtain  from  the  supreme  court  a  construc- 
tion of  the  statute  as  to  the  fees  and  commissions  the  attorney-general 
Was  entitled  to  receive,  but  the  right  of  the  attorney-general  to  sue  was 
necessarily  involved  in  the  question  presented  to  the  court,  and  was 
thoroughly  considered.  The  decision  rendered  should  set  the  matter 
at  rest.  It  may  not  be  improper  to  say,  however,  that  in  the  opinion 
of  the  writer  it  was  entirely  unnecessary  that  there  should  have  been 
any  relator  in  any  of  these  cases,  and  much  confusion  and  litigation 
might  have  been  avoided  by  bringing  the  actions  in  the  name  of  the 
state  without  any  relator.  The  money  sought  to  be  recovered  belonged 
to  the  state,  therefore  the  state  was  the  real  party  in  interest.  In  such 
cases  it  has  been  held  that  no  relator  is  necessary.5 

(e)  Moore,  Adm'r,  v.  The  State,  55  (f )  The  State  ex  rel.  Att'y-Gen'l  r. 

Ind.  360;  Fuhrer  v.The  State,  55  Ind.  Denny,  67  Ind.  148. 

150;  The  State  v.  Temple,  50  Ind.  585  ;  (g)  Fry  v.  The  State,  27  Ind.  348; 

The  State  v.  Giles,  52  Ind.  356;  The  Shane  v.   Francis,   30  Ind.  92;    ante, 

State  v.  Meyer,  63  Ind.  33.  §  54. 
3 


34  PARTIES.  [CHAP. 

It  has  been  held  that  where  land  belonging  to  the  state  has  been 
sold,  and  suit  is  brought  to  recover  the  purchase  money,  it  is  properly 
brought  in  the  name  of  the  state  on  the  relation  of  the  auditor  of 
state,  and  this  under  a  statute  which  provides  that  the  suit  shall  be 
instituted  in  the  name  of  the  state. h 

56.  Surety  of  the  peace. — In  an  action  for  surety  of  the  peace 
the  action  should  be  brought  in  the  name  of  the  state  without  any  re- 
lator.1 

57.  To  contest  elections. — Actions  to  contest  elections  should 
be  brought  in  the  name  of  the  state  on  relation  of  the  contestor.J 

58.  On  guardian's  bond. — Suit  on  a  guardian's  bond  may  be 
brought  on  the  relation  of  his  successor  in  office, k  or  on  the  relation  of 
the  ward. 

59.  Relators  in  actions  against  telegraph  and  other-com- 
panies under  the  statute  regulating  taxation. — By  the  pro- 
visions of  the  act  of  1881,  regulating  taxation,  telegraph,  express, 
telephone,  insurance,  sleeping-car,  and  other  foreign  companies  doing 
business  in  this  state,  are  required  to  report  to  the  auditor  of  state 
a  statement  of  their  earnings,  for  the  purposes  of  taxation,  and  a  pen- 
alty is  attached  to  the  failure  to  comply  with  the  terms  of  the  statute. 
It  is  provided  that  in  actions  to  recover  penalties  under  this  act,  the 
suit  shall  be  brought  in  the  name  of  the  state  on  the  relation  of  the 
auditor  of  state,  to  be  prosecuted  by  the  attorney-general.1 

But  actions  against  railroad  companies,  under  the  same  statute,  are 
required  to  be  brought  on  the  relation  of  the  attorney-general,™  and 
actions  against  street  railroad  and  other  companies  named,  incorporated 
under  the  laws  of  this  state,  must  be  brought  on  the  relation  of  the 
prosecuting  attorney.11 

EXECUTORS,  ADMINISTRATORS,  TRUSTEES  OF  AN  EXPRESS 
TRUST,  AND  PERSONS  AUTHORIZED  BY  STATUTE  TO 
SUE. 

60.  May  sue   without  joining   party   in   interest. — "Sec. 
252.  An  executor,  administrator,  a  trustee  of  an  express  trust,  or  a 

(h)  McCaslin  v.  The  State,  44  Ind.  (k)  K.  S.  1881,  §  2527;  Cogswell  t>. 
151-170.  The  State,  C5  Ind.  1. 

(i)  The  State  v.  Carey,  66  Ind.  72.  (1)  K.  S.  1881,  §  6351,  et  seq. 

(j)  The  State  v.  Adams,  65  Ind.  393.         (m)  K.  S.  1881,  §  6370. 

(n)  K.  S.  1881,  §  6357. 


IV.]  PAKTIES.  35 

person  expressly  authorized  by  statute,  may  sue  without  joining  with 
him  the  person  for  whose  benefit  the  action  is  prosecuted.  A  trustee 
of  an  express  trust,  within  the  meaning  of  this  section,  shall  be  con- 
strued to  include  a  person  with  whom  or  in  whose  name  a  contract  is 
made  for  the  benefit  of  another."  ° 

As  a  rule,  the  right  to  sue  for  debts  due  to  a  decedent  at  the  time 
of  his  death,  vests  in  his  executor  or  administrator,  but  where  there 
are  debts  to  be  paid  and  no  administration  is  had  upon  his  estate  his 
heirs  may  sue.p 

61.  Agent  not  trustee  of  an  express  trust. — One  who  acts 
merely  as  the  agent  of  another,  and  has  no  personal  interest  in  the 
subject-matter  of  the  action,  is  not  a  trustee  of  an  express  trust,  and 
can  not  maintain  an  action  in  his  own  name  upon  a  contract  made 
with  him  as  such  agent.     The  principal  for  whom  he  acts  is  the  real 
party  in  interest,  and  the  action  must  be  prosecuted  in  the  name  of  the 
principal.*1 

It  is  otherwise,  however,  where  the  instrument  sued  on  shows  on  its 
face  that  the  contract  was  made  for  the  benefit  of  a  third  person,  and 
it  was  held  that  where  a  note  was  made  payable  to  A.  (for  B.),  or  or- 
der, A.  was  a  "  trustee  of  an  express  trust,  and,  as  such,  was  the  proper 
person  to  bring  the  action.  "r 

62.  Who  is  trustee  of  an    express  trust. — In  the  case  of 
Heavenridge  v.  Mondy,  the  supreme  court  say :  "  The  meaning  of  the 
words,  '  a  trustee  of  an  express  trust,'  as  used  in  section  4,  above 
quoted,  was  not  left  to  the   interpretation  and  construction  of  the 
courts,  but  their  signification  and  construction  were  so  plainly  and 
clearly  defined  by  the  legislature  as  to  leave  no  room  for  doubt  or  con- 
struction.    Any  person  is  a  trustee  of  an  express  trust  with  whom  or 
in  whose  name  a  contract  is  made  for  the  benefit  of  another.     The 
word  contract  is  not  used  in  a  limited  or  restricted  sense,  but  it  is  used 
and  intended  to  be  applied  to  all  and  any  kind  of  contracts." 

The  section  of  the  statute  referred  to  may  not  seem  so  plain  to  the 

profession  as  it  did  to  the  writer  of  the  opinion  in  the  case  of  Heaven- 
Co)  R.  S.  1881,  g  252.  nel,  v.  Schmidt,  2  Sandf.  706.  But  see 
(p)  Martin  v.  Reid,  30  Ind.  218;  Fuller  v.  Curtis,  100  Ind.  237. 

Walpole  v.  Bishop,  31  Ind.  156;  Bearss         (r)  Heavenridge  v.  Mondy,  34  Ind. 

v.  Montgomery,  46  Ind. 544;  Schneider    28;    Weaver  v.  The  Trustees,  etc.,  28 

v.  Piessner,  54  Ind.  624;  Ferguson  v.     Ind.  112;  Dix  v.  Akers,  30  Ind.  431; 

Barnes,  58   Ind.  169;    Moore  v.  The     Mussulman    v.    Cravens,   47    Ind.   1; 

Board,  etc.,  59  Ind.  516.  Walcott  v.  Stanley,  62  Ind.  198; 

(q)  Rawlins  v.  Fuller,  31  Ind.  255;  Holmes  v.  Boyd,  90  Ind.  332. 

Minturn  v.  Main,  3  Seld.  220;    Grin- 


36  PARTIES.  [CHAP. 

ridge  v.  Mondy.  If  the  section  provided  that  a  trustee  of  an  express 
trust  should  be  construed  to  mean  a  person  with  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another,  the  comments  con- 
tained in  the  opinion  would  have  been  just,  but  the  statute  provides 
that  a  trustee  of  an  express  trust,  within  the  meaning  of  the  section, 
shall  be  construed  to  include  a  person  with  whom  or  in  whose  name  a 
contract  is  made  for  the  benefit  of  another. 

The  construction  placed  upon  the  section  in  the  above  case  gives  it  a 
limited  application,  and  has  the  effect  to  remove  the  doubt  as  to  the 
meaning  of  the  clause  of  the  section  referred  to.  The  numerous  cases 
involving  the  question  as  to  who  should  be  considered  a  trustee  of  an 
express  trust  are  sufficient  to  demonstrate  the  fact  that  the  section  of 
the  statute  is  not  so  clear  as  not  to  need  the  "  interpretation  and  con- 
struction of  the  courts,"  but  the  construction  given  it  in  this  case  is  less 
likely  to  lead  to  confusion  than  any  other,  and  with  such  a  construction 
the  statute  is  plain  enough.8 

63.  "Who  authorized  by  statute  to  sue. — Persons  authorized 
by  law  to  sue  are  such  as  are  given  such  authority  by  statute,  because 
of  their  holding  some  official  place.* 

« 

ACTIONS   THAT   SURVIVE. 

64.  Personal  representative  may  sue. — All  actions  that  sur- 
vive may  be  brought  by  the  personal   representatives.     Actions   for 
promises  to  marry  do  not  survive.     All  causes  of  action  arising  out 
of  an  injury  to  the  person  die  with  the  person  of  either  party,  ex- 
cept where  such  injury  results  in  the  death  of  any  person,  and  actions 
for  seduction,  false  imprisonment,  and  malicious  prosecution.11 

It  has  been  held  under  section  282  of  the  statute  that  where  a  plaint- 
iff prosecutes  his  action  for  injury  to  his  person  to  final  judgment -in 
the  special  term  of  the  superior  court,  and  upon  appeal  to  the  general 
term  the  cause  is  reversed  and  remanded  to  the  special  term  for  a  new 
trial,  and  thereafter  the  plaintiff  dies,  there  is  no  appeal  from  such  re- 
versal, in  the  general  term  of  the  superior  court,  to  the  supreme  court, 
by  the  personal  representatives.  The  action  is  one  that  dies  with  the 
person,  and  no  steps  can  be  taken  after  the  death  of  the  plaintiff.7 

(s)  The    Northwestern    Conference  (t)  Swift  v.  Elsworth,  10  Ind.  205 ; 

of  Universalists  v.  Myers.  36  Ind.  375;  Heavenridge  r.  Mondy,  34  Ind.  28-32. 

Nolteu.  Libbert,  34  Ind.  163;  Heaven-  (u)  K.   S.   1881,   §§   282,  283;    post, 

ridge  v.  Mondy,  49  Ind.  434;  Wiley  v.  \  164. 

Starbuck,  44  Ind.  298-309;   R.  S.  1881,  (v)  Stout,  Adm'r,  v.  The  Indianap- 

§  2969;  Holmes  v.  Boyd,  90  Ind.  332;  olis,  etc.,  R.  R.  Co.,  41  Ind.  149. 
Rinker  v.  Bissell,  90  Ind.  375. 


rv.]  PARTIES.  37 

65.  For  injuries  resulting  in  death. — The  statute  expressly 
provides  for  the  prosecution  of  actions  by  the  personal  representatives 
for  personal  injuries  resulting  in  death.  "When  the  death  of  one  is 
caused  by  the  wrongful  act  or  omission  of  another,  the  personal  repre- 
sentatives of  the  former  may  maintain  an  action  therefor  against  the 
latter,  if  the  former  might  have  maintained  an  action,  had  he,  lived, 
against  the  latter  for  an  injury  for  the  same  act  or  omission.  The  ac- 
tion must  be  commenced  within  two  years.  The  damages  can  not  ex- 
ceed ten  thousand  dollars,  and  must  inure  to  the  exclusive  benefit  of 
the  widow  and  children,  if  any,  or  next  of  kin,  to  be  distributed  in 
the  same  manner  as  personal  property  of  the  deceased."  w 

This  statute  authorizes  the  administrator  to  sue  in  case  of  the  death 
of  an  adult,  -but  where  the  person  whose  death  is  caused  by  the  wrong- 
ful act  of  another  is  a  minor,  the  action  must  be  prosecuted  in  the 
name  of  the  father,  if  living,  and,  if  dead,  in  the  name  of  the  mother, 
and  in  case  neither  father  nor  mother  is  living,  the  action  must  be 
prosecuted  by  a  guardian.1 

In  the  cases  cited  it  was  contended  that  the  section  of  the  statute  pro- 
viding that  actions  for  injuries  resulting  in  death  should  be  brought  by 
the  personal  representatives  of  the  deceased,  was  repugnant  to  section 
266  of  the  code  (sec.  27  old  code),  and  must  have  the  effect  to  re- 
peal the  latter  section.  If  such  were  the  case,  all  actions  of  this  na- 
ture must  have  been  brought  in  the  name  of  the  personal  representa- 
tive whether  the  deceased  were  adults  or  not.  In  the  O.  &  M.  R.  Co. 
v.  Tindall  it  was  held  that  section  284  (sec.  784  old  code)  did  not  re- 
peal section  266,  but  that  the  former  provides  how  the  action  shall  be 
brought  in  case  the  person  injured  was  an  adult,  and  does  not  affect 
the  right  of  the  guardian  or  parent  to  sue  when  the  deceased  was  a 
minor.  But  in  the  case  of  the  Pittsburgh,  etc.,  R.  Co.  v.  Vining's 
Adm'r,  a  somewhat  different  construction  was  placed  upon  section  266. 
It  was  held  in  the  latter  case  that  the  right  of  the  parent  to  sue  did 
not  depend  solely  upon  the  question  whether  the  deceased  was  a  minor, 
but  to  entitle  the  parent  to  sue,  the  child  must,  at  the  time  of  the 
injury,  have  been  dependent  upon  the  parent  for  support.  The 
court  say:  "The  word  child,  as  employed  in  the  27th  section,  is 
not  to  be  construed  as  equivalent  to  the  word  minor,  but  we  think 
is  limited  in  its  application  to  one  who  occupies  the  position  of  a  child 

(w)  R.  S.  1881,  I  284.  This  section  (x)  K.  S.  1881,  §  266;  The  O.  &  M. 
was  amended  in  1881  by  increasing  the  K.  R.  Co.  v.  Tindall,  13  Ind.  366;  The 
amount  of  damages  from  five  to  ten  Pittsburgh,  etc.,  R.  R.  Co.  u.  Vining's 
thousand  dollars.  Adm'r,  27  Ind.  513;  Hollingsworth  v. 

Swedenborg,  4    Ind.  378. 


38  PARTIES.  [CHAP. 

to  a  parent,  as  depending  upon  him  for  protection,  support,  and  edu- 
cation, and  can  not  be  held  to  include  one  who,  although  a  minor,  has 
assumed  the  relations  and  responsibilities  devolving  upon  the  head  of 
a  family.  We  think  it  is  intended  by  the  statute  that  the  position 
occupied  by  the  person  should  determine  the  question  rather  than  the 
age  alone." 

The  construction  placed  upon  the  two  sections  by  the  former  of  these 
two  cases  would  perhaps  be  less  likely  to  result  in  confusion,  and  would 
close  the  door  against  any  controversy  that  might  arise  under  the  con- 
struction given  them  by  the  latter.  The  question  as  to  whether  the 
deceased  was  a  minor  or  not  is  one  about  which  there  could  be  but 
little  controversy,  but  whether  he  was  a  "  child"  under  the  definition 
given  of  that  term  in  the  case  of  the  Pittsburgh,  etc.,  R.  Co.  v.  Vining's 
Adm'r,  would  not  be  so  easily  determined. 

There  is,  however,  a  very  palpable  reason  for  placing  this  latter 
construction  upon  these  sections.  Under  section  266,  if  the  action  is 
brought  by  the  father  or  mother,  the  damages  recovered  would  inure 
to  such  father  or  mother.  There  would  be  a  manifest  wrong  in  allow- 
ing an  action  to  be  brought  by  the  father  or  mother,  where  the  deceased, 
though  a  minor,  was  not  dependent  upon  the  parent  for  protection  or 
support,  but  was  himself  the  head  of  a  family,  who  were  dependent 
upon  him  for  support  and  protection.  The  result  would  be  that  the 
wife  and  children  would  receive  nothing,  and  the  damages  would  inure 
solely  to  the  benefit  of  the  father  or  mother  who  brought  the  action. 
Where  the  action  is  brought  under  section  284,  the  section  expressly 
provides  that  the  damages  "  must  inure  to  the  exclusive  benefit  of  the 
widow  and  children,  if  any,  or  next  of  kin."  The  same  reason  does  not 
exist  for  excluding  the  right  of  a  guardian  to  sue  under  section  266, 
as  that  section  provides  that  the  damages  recovered  shall  inure  to  the 
benefit  of  the  ward. 

Section  284  confers  no  right  of  action  for  an  injury  not  resulting  in 
death,  while  section  266  gives  a  right  of  action  to  the  parent  or  guardian 
for  injuries  which  do  not,  as  well  as  those  which  do,  result  in  death. 
This  being  true,  the  former  section  could  not  have  the  effect  to  repeal 
the  latter  by  implication. y 

In  the  case  cited,  the  court  after  citing  authorities,  say  with 
reference  to  repeal  by  implication  :  "It  must  appear  that  the  subse- 
quent statute  revised  the  whole  subject-matter  of  the  former  one,  and 
was  evidently  intended  as  a  substitute  for  it,  or  that  it  was  repugnant 
to  the  old  law.  In  other  words,  it  must  appear  that  it  was  the  intention 
of  the  law  makers  to  repeal  the  former  law.  When  that  appears,  the 

(y)  The  Water-works  Co.  v.  Burkhart,  41  Ind.  364-382. 


IV.]  PARTIES.  39 

will  of  the  law  makers  is  just  as  manifest  as  if  it  had  been  shown  by 
express  words."2 

Mr.  Buskirk,  in  his  work  on  Practice,  in  speaking  of  these  two  sec- 
tions of  the  statute  and  the  authorities  above  cited,  says :  "We  do  not 
think  that  the  two  sections  are  repugnant.  Section  784  gives  a  right 
of  action  only  where  death  has  resulted  from  the  injury  inflicted,  while 
section  27  gives  an  action  for  the  injury  or  death  of  a  child.  It  could 
not  be  held  that  an  action  could  be  brought  by  an  administrator  under 
section  784  for  the  injury  of  an  infant.  Hence,  section  784  does  not 
embrace  the  entire  subject-matter  of  section  27.  Besides  there  is  no 
limit  fixed  by  statute  as  to  the  amount  of  recovery  in  an  action  under 
section  27,  while  in  an  action  under  section  784  the  amount  of  recovery 
is  limited  to  five  thousand  dollars.  In  our  opinion,  the  correct  rule 
was  laid  down  in  the  O.  &  M.  R.  R.  Co.  v.  Tindall,  supra,  and  that 
was,  that  section  27  was  applicable  to  infants,  and  section  784  to  adults. 
This  construction  gives  full  force  and  effect  to  both  sections,  and  thereby 
effectuates  the  manifest  legislative  intention."* 

While  it  is  believed,  as  stated  by  the  learned  author,  that  the  rule 
laid  down  in  the  O.  &  M.  R.  R.  Co.  v.  Tindall,  is  correct,  it  is  not  the 
one  laid  down  by  our  supreme  court  in  the  latest  adjudicated  case  upon 
this  point.  The  case  of  the  Pittsburgh,  etc.,  R.  R.  Co.  v.  Vining's 
Adm'r,  lays  down  a  different  rule,  and  one  by  which  the  different 
courts  of  the  state  must  be  governed.  The  exposition  of  the  law  there 
laid  down,  has  been,  so  far,  acquiesced  in,  and  many  cases  have  been 
to  the  supreme  court  since  that  decision  was  promulgated,  which  were 
brought  in  conformity  with  the  rule  as  there  stated. 

The  only  difference  between  the  two  cases  is,  that  in  the  former  all 
cases  for  injuries  causing  death,  where  the  person  injured  is  a  minor, 
must  be  brought  in  the  name  of  the  father,  if  any  is  living,  if  not,  in 
the  name  of  the  mother,  and  if  neither  father  nor  mother  is  living, 
then  the  action  must  be  brought  by  the  guardian,  while  under  the  rule 
laid  down  in  the  latter  case  the  action  must  be  brought  by  the  father, 
mother,  or  guardian,  only  in  such  cases  where  the  person  injured  is  a 
"  child  "  depending  on  the  parents  for  support,  protection,  and  education. 
In  all  other  cases  the  action  must  be  brought  by  the  personal  repre- 
sentatives. And  where  the  person  injured  has  no  father  or  mother,  and 
no  guardian,  the  action  should  be  brought  by  the  personal  representa- 
tives.11 

(z)  Page  383.  (b)  The  Pittsburgh,  etc.,  E.  K.  Co. 

(a)  Busk.  Prac.  57.  v.  Vining,  27  Ind.  513 ;  Garm  v.  Wor- 

man,  69  Ind.  458. 


40  PARTIES.        •  [CHAP. 

66.  Authority  to  sue  under  decedents' act. — The  statute  for 
the  settlement  of  decedents'  estates  provides  that  "  every  executor  or 
administrator  shall  have  full  power  to  maintain  any  suit  in  any  court 
of  competent  jurisdiction,  in  his  name  as  such  executor  or  administrator, 
for  any  demand  of  whatever  nature  due  the  decedent  in  his  lifetime, 
for  the  recovery  of  possession  of  any  property  of  the  estate,  and  for 
trespass  or  waste  committed  on  the  estate  of  the  decedent  in  his  life- 
time."0    Under  this  section  the  administrator  or  executor  is  not  bound 
to  sue  in  the  court  having  jurisdiction  of  the  settlement  of  the  estate, 
but  may  maintain  the  action  in  any  court  of  competent  jurisdiction. 
The  statute  also  gives  a  creditor  of  the  estate  the  right  to  sue  on  claims 
that  have  been  reported  by  the  administrator  or  executor  as  worthless, 
in  certain  cases,  but  the  action  must  be  brought  in  the  name  of  the  ex- 
ecutor or  administrator,  and  not  in  the  name  of  the  creditor/ 

ACTIONS   RELATING  TO   REAL   ESTATE. 

67.  General  rule. — The  question  frequently  arises  in  actions  with 
reference  to  real  estate  whether  the  heirs  or  personal  representatives 
are  the  proper  parties  to  bring  the  action.     The  general  rule  is,  that 
the  heir  is  the  proper  person  to  bring  any  action  relating  to  the  real 
estate  of  a  deceased  person,  and  not  the  executor  or  administrator.     As 
a  general  rule,  the  personal  representatives  have  only  to  deal  with  the 
personal  estate  of  the  deceased,  and  have  no  control  over  the  real  es- 
tate.6 

68.  Exception  where  personal  estate  insufficient  to  pay 
debts. — Perhaps  the  most  important  exception  to  this  rule  is  where 
the  personal  estate  of  the  deceased  is  not  sufficient  to  pay  debts.     In 
that  case  the  executor  or  administrator  may  petition  the  court  to  sell 
the  real  estate   for  the  payment  of  debts/    And   may  maintain   an 
action   to  avoid  a  conveyance  of  real  estate  by  his  decedent  made 
to  defraud  creditors,  for  the   purpose  of  subjecting  such  real  estate 
to  the  payment  of  debts.     This  may  be  done  before  he  procures  an 
order  to  sell  such  real  estate  for  the  payment  of  debts,  but  it  must 
be  alleged  in  the  complaint  that  the  sale  of  the  real  estate  is  necessary 
for  the  payment  of  the  debts  of  his  decedent.8 

(c)  R.  S.  1881,  §  2291.  burg,  etc.,  Ry.  Co.  v.  Swinney,  97  Ind. 

(d)  R.  S.  1881,  %  2304-2308.  586. 

(e)  R.  S.  1881,  §  2260;  Comparet  et         (f )  R.  S.  1881,  §  2332. 

als.  v.  Randall,  4  Ind.  55;    McDonald         (g)   R.  S.  1881,  §2  2333,  2334,  2335; 
v.  Hendrix,  67  Ind.  513.    But  see  Pitt*-     Love  v.  Mikals,  Adm'r,  11  Ind.  227. 


IV.]  PARTIES.  41 

69.  "Where  no  heirs  present  to  take  possession  of  real 
estate. — If,  upon  the  death  of  a  testator  or  intestate,  there  be  no  heir 
or  devisee  present  to  take  possession  of  the  real  estate,  the  executor  or 
administrator  may  take  possession  of  such  real  estate  and  do  all  acts 
relating  thereto  which  may  be  for  the  benefit  of  the  persons  entitled  to 
the  same.     In  such  case  they  hold  the  real  estate  as  the  trustees  of  the 
heirs  or  legatees.11 

70.  Growing  crops. — The  personal  representatives  of  a  decedent 
are  entitled  to  the  annual  crops  growing  on  the  real  estate  owned  by 
the  decedent  at  the  time  of  his  death,  and  are  the  proper  parties  in 
any  action  relating  thereto.1    But  the   statute  gives  the  widow  and 
minor  children  the  right  to  occupy  the  residence  and  forty  acres  of 
land  adjacent  thereto  for  one  year.     During  that  time  the  widow  and 
children  may  maintain  an  action  for  possession,  for  rent,  or  injury  to 
the  possession.-* 

71.  On  bond  of  administrator  or  executor. — An  adminis- 
trator de  bonis  ivon  is  the  proper  relator  in  an  action  on  the  bond  of  the 
former  administrator  of  the  same  estate. k    But  the  action  may  be 
brought  by  any  creditor,  heir,  legatee,  co-executor,  or  co-administrator 
also.1    And  where  two  executors  or  administrators  are  appointed,  and 
give  a  joint  bond,  with  sureties,  if  one  of  such  executors  or  adminis- 
trators resigns  his  trust,  the  other  may  sue  him  upon  the  bond,  as  if  it 
were  his  separate  bond.1" 

72.  For  what  causes  action  on  bond  may  be  brought. — 

The  causes  for  which  such  actions  may  be  brought  are  laid  down  in  the 
statute  as  follows : 

First.  Failure  to  inventory  the  property  of  the  decedent,  to  return 
inventories,  appraisement  bills,  sale  bills,  reports,  and  accounts  of  sale 
according  to  la\v. 

Second.  Failure  to  pay  money  of  the  estate  into  court  according 
to  law. 

(h)  R.  S.  1881,  §§  2372,  2411;  Com-  Blkf.  260;  Williamson  v.  Ash,  7  Ind. 

paret  v.  Randall,  4  Ind.  55;  Guynn  v.  495. 

Jones,   Adm'r,   12   Ind.  486;    Butt  v.  (k)  R.S.  1881,  \  2458;  Myers  v.  The 

Clark,  23  Ind.  548.  State,   47  Ind.   293 ;    Graham   v.  The 

(i)  R.  S.  1881,  \  2200;  Humphrey  v.  State,  7  Ind.  470;  The  State  v.  Porter. 

Merritt,  51  Ind.  197.  9  Ind.  342. 

(j)  R.  S.  1881,  §  2492;  Weaver  v.  (1)  R.  S.  1881,  §  2458. 

Low,  29  Ind.  57 ;  Grimes  v.  Wilson,  4  (m)  The  State  r.  Wyant,  67  Ind.  25. 
Blkf.  331;  Taylor  v.  McCracken,  2 


42  PARTIES.  [CHAP. 

Third.  Failure  to  use  due  diligence  in  collecting  claims  due  the  estate. 

Fourth.  Want  of  reasonable  care  in  taking  solvent  sureties  to  all 
obligations  to  secure  the  purchase-money  of  any  of  the  property  of  the 
decedent. 

Fifth.  Embezzling,  concealing,  or  converting  to  his  own  use  such 
property. 

Sixth.  Negligently  permitting  any  of  the  property  of  the  decedent 
to  be  injured. 

Seventh.  For  committing  any  waste  upon  the  real  estate  of  the  de- 
cedent, or  knowingly  permitting  the  same  to  be  done,  when  such  real 
estate  is  in  his  possession  and  control  as  such  executor  or  adminis- 
trator. 

Eighth.  Failure  to  render  an  account  of  his  proceedings  whenever 
required  by  the  court  or  the  provisions  of  this  act. 

Ninth.  Non-compliance  with  any  order  of  the  court  touching  the 
estate. 

Tenth.  Any  other  violation  of  the  duties  of  his  trust." 

73.  "When  creditor  may  sue  on  bond. — It  was  held  in  Eaton 
v.  Benefield,  2  Blkf.  52,  that  to  entitle  a  creditor  to  maintain  an  action 
under  this  statute  he  must  first  obtain  a  judgment  against  the  estate 
the  executor  or  administrator  represents,  and  that  a  legatee  or  distrib- 
utee could  not  maintain  such  action  on  the  bond  until  his  claim  had 
been  exhibited  and  established  by  law,  and  payment  had  been  refused 
by  the  administrator  or  executor.  Until  such  steps  had  been  taken  he 
was  not  an  injured  party,  within  the  meaning  of  the  statute.  This 
ruling  was  followed  in  later  cases.0 

But  in  the  case  of  the  State  ex  rel.  Shannon  v.  Strange,  1  Ind.  53^, 
all  of  these  cases  are  in  effect  overruled.  There  is  no  reference  made 
in  this  case  to  the  other  cases  decided  upon  the  same  point,  though  one 
of  them  appears  in  the  same  volume  of  reports.  The  question  in  this 
latter  case  involved  the  question  whether  a  ward  might  sue  his  guard- 
ian on  his  bond,  without  first  establishing  his  claim  at  law,  but  the 
court  took  occasion  to  say  that  the  statute  authorized  suits  to  be 
brought  against  administrators  or  executors  by  the  persons  named  in 
the  statute,  without  having  first  established  their  claims.  This  ruling 
has  since  been  adhered  to.p 

(n)  R.  S.  1881,  §  2458.  (p)  The  State  v.  Kailsback,   7  Ind. 

(o)  Hunt  v.  White,  1  Ind.  105;  634;  The  State  v.  Hughes,  15  Ind.  104; 
Nicholson  v.  Carr,  3  Blkf.  104-107  The  State  v.  Clark,  16  Ind.  97;  The 
(note);  Wright  v.  The  State,  8  Blkf.  State  v.  Strange,  1  Ind.  538;  Heady  v. 
385.  The  State,  60  Ind.  316  ;  J3escherr>.  The 

State,  63  Ind.  302-317. 


IV.]  PARTIES.  43 

74.  Action  to  set  aside  allowance  of  fraudulent  claim.— 
An  action  to  set  aside  the  allowance  of  a  claim  against  an  estate,  on 
the  ground  that  the  same  was  fraudulently  allowed  and  paid  by  the 
executor  or  administrator,  may  be  brought  by  the  heir  or  legatee  of 
the  deceased  against  the  executor  or  administrator  and  the  creditor  to 
whom  the  claim  has  been  allowed  and  paid. 

MARRIED   WOMEN  AS   PLAINTIFFS. 

75.  When  may  sue  alone. — Our  statute  provides  generally  that 
a  married  woman  may  sue  alone : 

"First.  When  the  action  concerns  her  separate  property. 

Second.  When  the  action  is  between  herself  and  her  husband,  but 
in  no  case  shall  she  be  required  to  sue  or  defend  by  guardian  or  next 
friend,  except  she  be  under  the  age  of  twenty-one  years."  q 

In  addition  to  the  general  statute,  it  was  provided  by  the  code  of 
1852 :  Sec.  794.  "  Husband  and  wife  may  join  in  all  causes  of  action 
arising  from  injuries  to  the  person  or  character  of  either  and  both  of 
them,  or  from  injuries  to  the  property  of  either  and  both  of  them, 
or  arising  out  of  any  contract  in  favor  of  either  and  both  of  them ;" r 
but  this  section  is  omitted  in  the  present  statute. 

By  a  recent  statute  a  married  woman  was  authorized  to  sue  alone  "for 
damages  for  any  injury  to  her  person  or  character  the  same  as  if  she 
were  sole." 8 

It  has  been  held  by  the  supreme  court  that  the  first  of  these  statutes 
authorizing  a  married  woman  to  sue  alone  is  simply  permissive,  and  she 
may  join  her  husband  in  an  action  concerning  her  separate  property.* 

And  there  is  no  reason  why  the  same  construction  should  not  be 
given  to  the  act  of  1879." 

With  this  construction  given  to  the  statute  when  there  is  any  doubt 
about  whether  the  wife  is  authorized  to  sue  alone,  it  is  much  safer  to 
join  the  husband,  as  he  is  a  proper  party  plaintiff  in  all  actions  brought 
by  the  wife,  except  where  he  is  a  necessary  defendant. 

By  the  present  statute  a  married  woman  is  authorized  to  sue  alone 
for  damages  for  injuries  to  her  person  or  character  the  same  as  if  she 
were  soleJ 

(q)  K.  S.  1881,  §  254;  Adams  v.  Sa-  (s)  Acts,  1879,  p.  160,  §  6. 

te'-,  19  Ind.  418;  Gee  v.  Lewis,  20  Ind.  (t)  Martindale  v.  Tibbetts,  16  Ind. 

1-10;    Hollingsworth   v.   The   State,   8  200;  Bellows  v.  McGinnis,  17  Ind.  66; 

I  nd.  257 ;  Shockley  17.  Shockley,  20  Ind.  Gee  v.  Lewis,  20  Ind.  149. 

108;  Schurman  v.  Marlcy,  29  Ind.  458.  (u)  Pomeroy's  Remedies,  §  238;  At- 

(r)  2  E.  S.  1876,  p.  313;  Griffin  v.  kinson  v.  Mott,  102  Ind.  431. 

Kemp,  46  Ind.  172;  Long  v.  Morrison,  (v)   K.  S.  1881,  §  5131. 
14  Ind.  595. 


44  PARTIES.  [CHAP. 

76.  When  husband  refuses  to  join  in  action. — It  seems  not 
to  have  been  decided  by  the  supreme  court  whether,  in  case  the  hus- 
band should  refuse  to  join  with  the  wife  where  he  is  a  necessary  party, 
she  could  make  him  a  defendant  in  the  action,  but  it  is  believed  that 
the  statute  providing  that  "  if  the  consent  of  any  one  who  should  have 
been  joined  as  plaintiff  can  not  be  obtained,  he  may  be  made  a  de- 
fendant, the  reason  thereof  being  stated  in  the  complaint,"  would  ap- 
ply to  this  as  well  as  any  other  case,w  but  it  is  not  sufficient  to  allege 
that  the  husband  has  abandoned  the  wife.* 

As  it  is  necessary  that  the  complaint  in  every  instance  should  show 
a  cause  of  action  in  all  of  the  plaintiffs,  where  a  party  is  joined  simply 
because  he  is  the  husband  of  his  co-plaintiff,  that  fact  must  be  alleged 
in  the  complaint. y 

77.  "When  -wife  may  sue  for  husband. — Where  a  husband  or 
father  has  deserted  his  family,  or  is  imprisoned,  the  wife  or  mother  is 
authorized  by  statute  to  prosecute  or  defend  any  suits  that  the  husband 
might  have  prosecuted  or  defended.2 

As  her  right  to  sue  depends  upon  the  desertion  or  imprisonment  of 
the  husband,  the  complaint  must  show  one  or  the  other  of  these  facts. 

INFANTS. 

78.  When  may  sue. — "  When  an  infant  shall  have  a  right  of  ac- 
tion, such  infant  shall  be  entitled  to  bring  suit  thereon,  and  the  same 
shall  not  be  delayed  or  deferred  on  account  of  such  infant  not  being 
of  full  age.  "a 

79.  When  sole  plaintiff  must  sue   by  next  friend. — But 
when  the  infant  is  a  sole  plaintiff,  before  process  can  issue,  some  com- 
petent and. responsible  person  shall  consent  in  writing  to  appear  as  the 
next  friend  of  such  infant,  and  such  next  friend  shall  be  responsible 
for  cost.b 

It  was  held  in  some  of  the  earlier  cases  that  where  suit  was  brought 
by  a  next  friend,  the  complaint  must  allege  that  the  plaintiff  for  whom 
the  next  friend  appeared  was  an  infant,  or  the  complaint  would  be  bad 
on  demurrer.0 

But  in  the  case  of  Lancaster  v.  Gould,  46  Ind.  397,  the  supreme 

(w)  R.  S.  1881,  I  254.  ger,  3  Blkf.  225 ;  Lumpkins  v.  Justice,, 

(x)  Barnett  v.  Leonard,  66  Ind.  422.  1   Ind.   557 ;  Lancaster   v.   Gould,   46 

(y)  Griffin  v.  Kemp,  46  Ind.  172.  Ind.  397;  Resor  v.  Resor,  9  Ind.  347; 

(z)  R.  S.  1881,  l\  265,  266.  Smith  v.  Kirkpatrick,  58  Ind.  254. 

(a)  R.  S.  1881,  I  255.  (e)  Shirley  v.  Hager,  3   Blkf.  225; 

(b)  R.  S.  1881,  g  256;  Shirley  v.  Ha-  McGillicuddy  v.  Forsythe,  5  Blkf.  435. 


IV.]  PARTIES.  45 

court  held  that  the  failure  to  allege  the  plaintiff's  infancy  did  not 
render  the  complaint  bad  on  demurrer,  but  the  allegation  that  he  sued 
by  next  friend  should  be  regarded  as  surplusage. 

Although  the  statute  provides  in  express  terms  that  no  process  shall 
issue,  where  the  plaintiff  is  an  infant,  until  some  competent  and  respon- 
sible person  shall  appear  as  next  friend,  it  has  been  held,  in  a  late  case, 
that  where  such  process  has  issued,  and  the  defendant,  by  way  of 
answer,  sets  up  that  the  plaintiff  is  an  infant,  and  the  suit  is  brought 
without  a  next  friend,  a  next  friend  may  appear  and  file  the  proper 
consent  and  undertaking  over  the  objection  of  the  defendant.*1 

The  decision  is  placed  upon  the  ground  that  the  appearance  by  the 
next  friend,  and  the  necessary  allegation  in  the  Complaint  after  such 
appearance,  was  within  the  right  of  amendment  given  by  statute.6 

80.  May  sue  as  poor  person  without   next   friend. — The 

statute  does  not  provide  in  terms  that  an  infant  may  sue  as  a  poor 
person,  without  complying'with  the  statute  requiring  him  to  sue  by  next 
friend,  but  the  two  sections  relating  to  poor  persons  and  infants  have 
been  so  construed  as  to  authorize  an  infant  to  sue  as  a  poor  person 
without  a  next  friend. f 

GUARDIANS    AS    PLAINTIFFS. 

81.  When  may  sue  as  such. — There  is  no  statute  in  this  state 
authorizing  guardians  to  bring  suit  for  their  wards  in  the  name  of  such 
guardians  generally.     The  general  practice  act,  as  we  have  seen,  only 
authorizes  suits  to  be  brought  by  next  friend,  but  in  that  case  the  suit 
is  brought  in  the  name  of  the  infant. 

There  is  no  authority  given  a  guardian,  in  the  act  relating  to  guardian 
and  ward,  to  bring  suit  in  his  own  name.8 

In  section  252  of  the  statute,  subdivision  fifth,  it  is  made  .the 
duty  of  the  guardian  to  "  collect  all  debts  due  such  ward,"  and  the 
supreme  court  has  said  that  this  implies  the  authority  to  collect  by  suit 
when  necessary.11 

But  even  this  construction  would  only  authorize  the  guardian  to  sue 
for  the  collection  of  debts  due  the  ward.(l) 

The  latter  clause  of  section  252  of  the  code  provides  that  "  it  shall 
not  be  necessary  to  make  an  idiot  or  lunatic  a  joint  party  with  his 
guardian  or  committee,  except  as  may  be  required  by  statute."' 

(d)  Greenman  v.  Cohee,  61  Ind.  201.         (h)  Shepherd  v.  Evens,  9  Ind  260; 

(e)  R.  S.  1881,  \\  394,  396.  Wilson  t>.  Galey,  103  Ind.  257,  261. 

(f)  Hood  v.  Pearson,  67  Ind.  368;         (1)   Wilson  v.  Galey,  103  lod.  257, 
R.  S.  1881,  §  260.  261. 

(g)  R.  S.  1881,  I  2521.  Ci)  R.  S.  1881,  §  252. 


46  PARTIES.    .  [CHAP. 

The  section  does  not  name  guardians  of  infants,  and  does  not  ex- 
pressly authorize  suits  to  be  brought  by  guardians  of  idiots  or  lunatics, 
unless  they  are  included  within  the  term,  "  trustees  of  an  express 
trust." 

They  are  not  expressly  authorized  by  statute  to  sue.  At  common 
law  the  suit  would  be  properly  brought  in  the  name  of  the  idiot  or 
lunatic,  and  in  suits  in  chancery  the  practice  was  to  join  the  lunatic 
and  his  committee  in  the  action.  But  under  the  section  of  the  code 
just  cited,  it  has  been  held  that  the  suit  by  a  guardian  of  an  insane 
person  is  properly  brought  in  the  name  of  the  guardian,  and  that  the 
complaint  must  show  that  the  right  of  action  is  in  the  insane  per- 
son.J 

This  section,  that  is  confined  by  its  terms  to  guardians  of  idiots  and 
lunatics,  has  been  construed  to  include  guardians  of  infants. k  But 
it  is  held  in  a  later  case  that  the  action  must  be  brought  by  next  friend, 
and  not  by  guardian.1  It  has  been  held  in  some  of  the  later  cases  that, 
whether  the  suit  is  brought  by  guardian  or  next  friend,  the  infant  must 
be  regarded  as  the  party. m 

The  importance  of  determining  whether  an  infant  may  sue  by 
guardian  instead  of  next  friend  is  evident.  If  the  suit  is  brought  by 
the  guardian,  no  security  for  costs  need  be  given,  while  in  the  case  of 
a  next  friend,  the  person  acting  as  such  must  be  competent  and  respon- 
sible, and  must  acknowledge  himself  responsible  for  costs. 

While  there  is  no  decided  case,  and  no  statute  authorizing  the 
guardian  to  sue  in  all  cases,  the  practice  of  bringing  suits  in  this  way 
is  very  general,  and  seems  to  be  recognized  as  proper  by  the  decisions 
of  the  supreme  court. 

82.  For  seduction  of  ward. — A  guardian  is  expressly  authorized 
by  statute  to  sue  for  the  seduction  of  his  ward  in  certain  cases. n 

This  section  seems  not  to  have  received  a  construction  at  the  hands 
of  the  supreme  court,  but  it  is  the  same  in  legal  effect  as  section  266 
of  the  code,  which  authorizes  a  guardian  to  sue  for  the  injury  or  death 
of  his  ward.0  And  under  this  latter  section  it  is  held  that  the  right 
of  the  guardian  to  sue  does  not  exist,  except  in  case  of  the  death  or 

(j)   Bearrs  v.  Montgomery,  46  Ind.  (m)  "Whitten  v.  The  State,  36  Ind. 

544;  Meharry  v.  Meharry,  59  Ind.  257.  196;  Tyler  on  Coverture  and  Infancy, 

(k)  Shepherd  v.  Evens,  9  Ind.  260;  p.  192. 

Pomeroy's  Remedies,  §  182.  (n)  R.  S.  1881,  §  264. 

(1)  Maxedon  v.  The  State,  24  Ind.  (o)  R.  S.  1881,  §  266. 
370. 


IV.]  PARTIES.  47 

\ 

desertion  of  his  family  by,  or  imprisonment  of  the  father  of  his  ward, 
and  the  death  of  the  mother. p 

But  it  is  held  in  the  case  of  the  Pittsburgh,  etc.,  R.  Co.  v. 
Viniug,  supra,  that  the  word  "child,"  as  used  in  section  29,  must  be 
construed  to  mean  one  "  who  occupies  the  position  of  a  child  to  a 
parent  as  being  dependent  upon  him  for  protection,  support,  and  edu- 
cation," and  if  the  party  injured  were  a  minor,  but  not  a  "child," 
within  the  above  definition  of  the  term,  the  action  would  be  properly 
brought  by  the  guardian. 

Section  264  differs  from  section  266  in  this  respect.  The  former 
section  authorizes  suit  to  be  brought  by  the  father  or  mother,  "  though 
the  daughter  be  not  living  with  or  in  the  service  of  the  plaintiff  at  the 
time  of  the  seduction,  or  afterwards."  Under  this  section,  then,  the 
father  or  mother  could  sue,  whether  the  child  was  dependent  upon 
them  or  not,  and  the  guardian's  right  to  sue  would  be  subordinate  to 
theirs.  In  case  the  father  and  mother  should  refuse  to  sue,  the 
guardian  might  still  bring  the  action.  When  the  action  is  brought  by 
the  guardian  for  injury  or  the  seduction  of  the  ward,  the  damages 
recovered  shall  inure  to  the  benefit  of  his  ward. 

83.  Foreign  guardian. — A  foreign  guardian  is  authorized  to  sue 
in  this  state  upon  filing  an  authenticated  copy  of  his  or  her  appoint- 
ment in   the  office  of  the  clerk  of  the  circuit  court  of  the   county 
where  the  suit  is  to  be  brought.*1 

84.  In  settlement  of  decedents' estates. — It  is  also  provided 
in  the  act  concerning  the  settlement  of  decedents 'estates  that  "  in  all 
suits  and  proceedings  instituted  under  the  provisions  of  this  act,  in 
which  infants  may  be  plaintiffs,  complainants,  or  defendants,  such  in- 
fants shall  appear  by  their  guardian  at  law  or  guardian  ad  litem,  ap- 
pointed by  the  court." r 

So,  under  this  statute,  it  is  necessary  that  infant  plaintiffs  should 
appear  by  their  legal  guardian.  "  Sec.  2452.  The  same  duties  are  re- 
quired of,  and  the  same  powers  granted  to  guardians  of  persons  of  un- 
sound mind  as  are  required  of  and  granted  to  guardians  of  minors,  so 
far  as  the  same  may  be  applicable."  8  And  he  may  bring  suit  for  his 
ward.' 

(p)  Ante,  2  65;  The  O.  &  M.  K.  R.  State,  53  Ind.  403;  Earl  v.  Dresser,  30 

Co.  v.  Tindall,  13  Ind.  366  ;  The  Pitts-  Ind.  11. 

burgh,  etc.,    R.    R.  Co.  v.  Vining,  27  (r)  R.  S.  1881,  ?  2452. 

Ind.  513;    Hollingsworth   v.   Sweden-  (s)  R.  S.  1881,  §  2551. 

burg,  49  Ind.  378.  (t)  Bearrs  v.  Montgomery,  46  Ind. 

(q)  R.  S.  1881,  §  2540;  j?hook  v.  The  544. 


48  PARTIES.  [CHAP. 


MISCELLANEOUS. 

85.  Unmarried  female  may  sue  for  her  own  seduction. — 
Under  our  statute,  an  unmarried  female  may  prosecute,  as  plaintiff,  an 
action  for  her  own  seduction. u 

At  common  law  the  right  of  action  was  in  the  father  or  mother,  who 
had  a  right  to  her  services.  It  has  been  held,  therefore,  that  her  right 
to  sue  depends  solely  on  the  statute,  and  that  the  complaint  must  show 
affirmatively  that  the  plaintiff  is  an  unmarried  female.7 

As  we  have  seen,  the  next  section  following  the  one  authorizing  un- 
married females  to  sue  for  their  own  seduction,  gives  the  same  right 
of  action  to  the  father,  mother,  or  guardian.  This  right  of  the  father 
and  mother  is  not  limited  to  minor  daughters,  and  it  is  expressly  pro- 
vided that  they  may  bring  such  suit  when  the  daughter  is  not  living 
with  or  in  their  service. w 

Although  the  right  of  the  father  or  mother  to  sue  is  not  expressly 
confined  to  infant  daughters,  it  is  believed  that  such  was  the  intention 
of  the  legislature,  and  that  where  the  daughter  is  of  age  the  suit 
should  be  brought  in  her  own  name.  This  would  appear  to  be  the 
proper  construction  of  the  section,  as  the  right  of  the  guardian  to  sue 
is  coupled  with  and  made  the  same  as  that  of  the  parents  in  case  of 
their  death,  and  for  the  further  reason  that  the  preceding  section 
changes  the  common-law  rule  by  giving  the  right  of  action  to  the  fe- 
male herself. 

86.  Actions   by  poor  person. — The  statute  provides  for  the 
prosecution  of  actions  by  poor  persons,  but  no  new  right  to  sue  is  given 
or  new  parties  plaintiff  made  necessary.    Xhe  statute  is  only  important 
as  affecting  the  question  of  cost.* 

87.  "When  proper  plaintiff  refuses  to  join  in  the  action. — 
Where  a  party  is  a  necessary  plaintiff,  but  refuses  to  join  in  the  action, 
he  may  be  made  a  defendant,  the  reason  thereof  being  stated  in  the 
complaint,  and  in  such  case  the  remaining  parties  may  prosecute  the 
action  alone. y 

88.  When  parties  are  numerous,  part  may  sue  for  all. — 

(u)  B.  S.  1881,  §  263.  (y)  R.  S.  1881,   §  269;    post,  §  93; 

(v)  Thompson   v.  Young,    51    Ind.     Moore  v.  Jackson,  35  Ind.  360 ;  Hill  v. 
599;  Gates  v.  McKinney,  48  Ind.  562.     Marsh,  46  Ind.  218;  Shoemaker  r.  The 
(w)  E.  S.  1881,  §264.  Board  of  Comm'rs  of  Grant   Co.,   36 

(x)  R.  S.  1881,  §  260.  Ind.  175 ;  Tate  v.  The  O.  &  M.  R.  R 

Co.,  10  Ind.  174. 


IV.]  PARTIES.  49 

The  code  also  provides  that  "  when  the  question  is  one  of  a  common 
or  general  interest  of  many  persons,  or  where  the  parties  are  numerous, 
and  it  is  impracticable  to  bring  .them  all  before  the  court,  one  or  more 
may  sue  for  the  benefit  of  the  whole. "z 

89.  When  surviving  partner  may  sue. — Surviving  partners 
are  authorized  by  statute  to  settle  and  close  up  the  partnership  busi- 
ness, and  are  required  to  file  an  inventory  of  the  estate  of  the  partner- 
ship.8 

The  right  to  sue  is  not  expressly  conferred  upon  the  surviving  part- 
ner, but  the  right  to  settle  the  partnership  business  carries  with  it  the 
right  to  bring  any  suits  that  may  be  necessary  for  that  purpose. 

As  bearing  upon  this  point,  see  cases  cited  in  the  foot-note. b 

90.  Assignee  for  benefit  of  creditors. — When  an  assignment 
has  been  made  by  a  debtor  for  the  benefit  of  creditors,  the  assignee  is 
the  proper  party  to  bring  suit  on  account  of  any  matters  necessary  for 
the  settlement  of  the  estate. c 

91.  For  goods  shipped  C.  O.  D. — Where  goods  are  shipped, 
marked  C.  O.  D. ,  the  consignor  may  sue  on  the  contract.     "  The  con- 
tract of  the  common  carrier  is  not  only  to  safely  carry  and  deliver  the 
goods  to  the  assignee,  but  also  to  collect  on  delivery,  and  return  to  the 
consignor  the  charges  on  the  goods." 

Where  the  goods  are  not  shipped  C.  O.  D.,  the  consignee  is  the 
proper  party  plaintiff.'1 

92.  Persons  of  unsound  mind. — Where  a  party  has  been  de- 
clared insane,  and  is  under  guardianship,  an  action  can  not  be  main- 
tained in  his  own  name  to  inquire  into  the  proceedings  declaring  him 
insane,  nor  can  he  maintain,  in  his  own  name,  an  action  to  declare  his 
restoration  to  soundness  of  mind. 

The  action  must  be  brought  in  the  name  of  some  other  person.  To 
sue  by  next  friend  is  to  sue  in  the  name  of  the  party  himself,  and 
therefore  the  joining  of  a  next  friend  can  make  no  difference. 

The  statute  authorizes  any  person  to  institute  proceedings  to  declare 

(z)  R.  S.  1881,  §269;  Sourse  v.  Mar-  (b)  Krutz   v.   Craig,   53   Ind.   561; 

shall,  23  Ind.  194;  Shoemaker  v.  The  Skillen  v.  Jones,  44  Ind.   136;  Cobble 

Board,  etc.,  36  Ind.  175;  Tate  v.  The  v.  Tomlinson,  50  Ind.  550. 

O.  &  M.  R.  R.  Co.,  10  Ind.  174.  (c)  K.   S.   1881,   §   2671;    Foster  v. 

(a)  R.  S.  1881,  $  6046,  6047;  Nick-  Brown,  65  Ind.  234. 

laus  v.  Dahn,  63  Ind.  87.  (d)  The  U.  S.  Express  Co.  v.  Keefer, 

59  Ind.  263. 


50  PARTIES.  [CHAP. 

another  of  unsound  mind,  and  the  section  authorizing  proceedings  to 
be  instituted  to  declare  his  restoration  to  soundness  of  mind  is  equally 
broad  in  its  terms.6 

PARTIES   DEFENDANT. 

93.  Who  proper  defendants. — On  the  subject  of  defendants 
little  need  be  said  in  this  connection.  The  question  as  to  who  should 
be  joined  as  defendants  will  be  considered  in  the  chapter  on  joinder  of 
parties.  It  may  be  said,  generally,  that  all  persons  who  are  necessary 
parties  to  the  action,  not  proper  plaintiffs,  should  be  made  defendants, 
and  that,  generally,  where  parties  have  been  shown  to  be  proper  plaint- 
iffs, they  would  be  proper  defendants  if  the  cause  were  reversed.  This 
is  not  true,  however,  in  the  case  of  infants.  We  have  seen  that,  as 
plaintiffs,  they  are  required  by  the  statute  to  appear  by  next  friend, 
and,  in  certain  cases,  by  their  legal  guardian.'  They  may  be  sued  and 
brought  into  court  as  other  persons,  and,  as  defendants,  must  defend 
by  guardian  ad  litem,  appointed  by  the  court,  or  selected  by  them,  with 
the  consent  of  the  court,  or  by  their  legal  guardian.5 

Notwithstanding  it  is  made  the  duty  of  the  legal  guardian  to  appear 
and  defend  all  suits  brought  against  his  ward,  it  has  been  held  that 
the  court  may  appoint  a  guardian  ad  litem,  to  defend  an  infant,  where 
he  has  a  legal  guardian. h 

Parties  who  are  proper  plaintiffs,  and  should  be  joined  as  such,  be- 
come proper  defendants  by  their  refusal  to  join  as  plaintiffs ;  in  which 
case,  it  is  necessary  that  the  complaint  should  show  the  reason  for  their 
being  made  defendants.1 

(e)  K.  S.  1881,  §§2545,2552;  Gilles-  Ibid.,  §  888;   Ibid.,   §   2452;    Ibid.,  § 
pie  v.  Thompson,  7  Ind.  353;  Meharry  2598;  Ibid.,  §2520;  Ibid.,  §355;  Ibid., 
v.  Meharry,  59  Ind.  257.                     '  §  2521 ;  Abdill  v.  Abdill,  26  Ind.  287. 

(f)  Ante,  §  79.  (h)  Alexander  v.  Frary,  9  Ind.  481. 

(g)  R.  S.  1881,  §  258;  Ibid.,  §  2344;  (i)  R.  S.  1881,  §  269;  ante,  §  87. 


V-] 


JOINDER   OF   PARTIES. 


51 


CHAPTER  V. 


JOINDER  OF  PARTIES. 


SECTION  . 

94.  Object  of  the  code. 

95.  All  parties  united  in  interest  must 

be  joined  as  plaintiffs. 

96.  When  persons  having  an  interest 

need  not  be  joined. 

97.  What  is  meant  by  unity  of  inter- 

est. 

98.  Changes   wrought  by   the  code; 

unity  of  interest. 

99.  The  authorities. 

100.  Application  of  the  rule. 

101.  Effect  of  joining  too  many  plaint- 

iffs. 

102.  Authorities  inconsistent  with  the 

statute. 

103.  Executors,  administrators,  trustees 

of  express  trusts,  or  guardians 
may  sue  alone. 

104.  The  statute   authorizing  joinder 

liberally  construed. 

105.  When  one  party  may  sue  for  all. 

106.  In  actions  relating  to  real  estate; 

tenants  in  common. 

107.  Actions  to  recover  real  estate. 

108.  By  trustee  to  foreclose  mortgage. 

109.  Actions  to  contest  wills. 

110.  Married  women. 

111.  Actions  for  injury  to  the  wife. 

112.  Who  must  sue  for  injury  causing 

the  death  of  the  wife. 

113.  Must  be  some  person  entitled  to 

damages  recovered,  or  no  action 
can  be  maintained. 

114.  Two  causes  of  action  arise  in  case 

of  injury   to   wife;    when    hus- 
band may  sue. 

115.  On  notes   held   by  different  par- 

ties, secured  by  same  mortgage, 
parties  can  not  join  as  plaintiffs. 


SECTION  . 

WHO  MAT  BE  JOINED  AS  DEFENDANTS. 

116.  The  statute. 

117.  Necessary  parties   must  be,  and 

proper  parties  may  be,  joined. 

118.  Who  are  necessary  defendants. 

119.  Who  are  proper  defendants. 

120.  In  actions  on  joint  contracts. 

121.  Several  judgments    may   be    re- 

covered against  parties  jointly 
sued. 

122.  Only  parties   liable  in   the  same 

right  should  be  joined. 

123.  In  actions  on  notes  and  bills. 

124.  Executor  or  administrator  of  joint 

contractor  can  not  be  joined 
with  survivor. 

125.  Official     bonds,     and     bonds    of 

executors,  administrators,  and 
guardians,  may  be  treated  as 
joint  or  several. 

126.  All  or  any  of  the  parties  severally 

or  jointly  and  severally  liable 
may  be  sued,  at  the  plaintiff's 
option. 

127.  Principal    and    surety    may    be 

joined,  but  principal  and  guar- 
antor can  not. 

128.  When    indorser   may   be    joined 

with  maker  of  promissory  note 
or  drawer  of  bill  of  exchange. 

129.  What  promissory  notes  are  ne- 

gotiable by  the  law  of  this 
state. 

130.  When    individual   members  may 

be  sued  for  debts  of  corpora- 
tion. 

131.  In   action    by  assignee,    without 

indorsement,  assignor  must  be 
joined. 


JOINDER   OF   PARTIES. 


[CHAP. 


NECESSARY  DEFENDANTS  IN  ACTIONS 
FOR  SPECIFIC  PERFORMANCE  OF 
CONTRACTS  TO  CONVEY  HEAL  ES- 
TATE. 

132.  By  vendee. 

133.  By  vendor. 

134.  Where  vendor  is  dead. 

IN   FORECLOSURE   OF    MORTGAGES. 

135.  Necessary  and  proper  parties. 

136.  Where  several  notes   secured  by 

the  same  mortgage  are  held  by 
different  parties. 

137.  When    wife   necessary   party    in 

foreclosure  against  husband ; 
where  wife  does  not  join  in 
mortgage. 

138.  Effect   of   statute   making   wife's 

interest  absolute  on  judicial 
sale. 

139.  Wife  can  not  maintain  an  action 

for  partition,  where  mortgage 
is  assumed  by  husband  for  pur- 
chase-money. 

140.  Who  must    be  made  defendants, 

mortgagor  being  dead. 

141.  Owner   of   real    estate    must    be 

made  a  defendant. 

142.  Mortgagor  who  has  conveyed  real 

estate  not  a  necessary  party. 

143.  When   mortgagor   has   conveyed 

part  of  real  estate  mortgaged. 


144.  If   mortgagor  deceased,  personal 

representatives     not    necessary 
parties. 

145.  Junior  incumbrancers  proper  but 

not  necessary  parties. 

146.  Pcndente  lite  purchasers. 

147.  Heirs  of  purchaser. 

148.  Prior  incumbrancers. 

149.  Surviving  partner. 

PARTNERSHIP    CONTRACTS. 

150.  Common    law    rule,   where    one 

partner  is  deceased. 

151.  Equitable  rule. 

152.  Under  the  code. 

153.  The  authorities  under  the  code. 

154.  Effect  of  the  authorities. 

155.  Dormant  partners. 

156.  Nominal  partners. 

ACTIONS    TO    PARTITION    REAL    ESTATE. 

157.  All    the   owners    necessary   par- 

ties. 

158.  Creditors, 

159.  Parties  holding  liens  on  individ- 

ual interests. 

160.  Parties  laboring  under  legal  disa- 

bilities. 

161.  Where  the  state  is  interested. 

162.  In  actions  to  reinstate  lost  or  de- 

stroyed papers  or  records. 


94.  Object  of  the  code. — It  is  the  great  object  of  our  code  that 
all  persons  interested  in  any  legal  controversy  shall  be  brought  before 
the  court  in  one  proceeding,  either  as  plaintiffs  or  defendants,  that  un- 
necessary litigation  may  be  avoided.  It  may  be  laid  down  as  a  general 
proposition,  that  under  our  present  system  of  practice  and  pleading, 
all  parties  having  an  interest  in  the  controversy  may  be  made  parties 
to  the  action,  and  will  be  bound  by  the  judgment  of  the  court. 

The  common-law  rule  as  to  necessary  parties  plaintiff  is  changed  in 
only  two  material  respects.  The  common  law  required  that  all  parties 
having  a  joint  interest  must  be  joined  as  plaintiffs.  To  this  there  was 
no  exception.  The  refusal  of  one  of  the  parties  interested  to  join  in 
the  action  was,  under  this  arbitrary  rule,  an  absolute  bar  to  a  recovery 
by  the  others.  In  equity  the  rule  was  that  a  party  who  was  a 


V.]  JOIXDER  OF  PARTIES.  53 

necessary  plaintiff,  but  refused  to  join  as  such,  might  be  made  a  de- 
fendant. 

95.  All   parties   united   in   interest   must    be   joined   as 
plaintiffs. — Our  statute  provides:  "Sec.  269.  Of  the  parties  in  the 
action  those  who  are  united  in  interest  must  be  joined  as  plaintiffs  or 
defendants ;  but  if  the  consent  of  any  one  who  should  have  been  joined 
as  plaintiff  can  not  be  obtained,  he  may  be  made  a  defendant,  the  rea- 
son thereof  being  stated  in  the  complaint ;  and  when  the  question  is 
one  of  a  common  or  general  interest  of  many  persons,  or  where  the 
parties  are  numerous,  and  it  is  impracticable  to  bring  them  all  before 
the  court,  one  or  more   may  sue  or  defend  for  the  benefit  of  the 
whole." a 

Under  this  statute,  the  requirement  that  all  parties  who  are  united 
in  interest  must  be  joined  as  plaintiffs  is  as  imperative  now  as  it  was 
at  common  law,  except : 

1.  Where  one  who  should  be  joined  refuses  to  become  a  plaintiff; 
and,  2.  Where  the  parties  have  a  common  or  general  interest,  or  are  so 
numerous  as  to  make  it  impracticable  to  bring  them  before  the  court. 

The  first  exception  does  not  avoid  the  necessity  of  making  the  party 
who  refuses  to  join  as  plaintiff  a  party  to  the  suit.  The  failure  to 
make  such  person  a  party  defendant  would  be  as  fatal  to  the  plaintiff's 
right  to  recover  as  if  he  had  been  omitted  as  a  plaintiff  without  cause. 
And  the  reason  for  making  such  party  a  defendant  must  be  stated  in 
the  complaint. b 

The  second  exception  makes  it  unnecessary  to  join  the  parties,  either 
as  plaintiffs  or  defendants  ;  but  in  this  case,  as  in  the  other,  the  com- 
plaint should  show  that  the  parties  omitted  have  such  an  interest  as 
would  render  them  proper  plaintiffs  ;  that  the  plaintiffs  sue  for  them- 
selves and  others  interested,  and  the  reason  for  failing  to  join  them  in 
the  action.  The  effect  of  this  provision  is  that  the  action  is  one  by  all 
the  parties  interested.  Their  names  only  are  omitted,  and  the  party 
named  as  plaintiff  stands  as  the  representative  of  all  the  persons  for 
whom  he  sues.c 

96.  When  persons  having  an  interest  need  not  be  joined. 
We  have  this  farther  statute  on  the  subject  of  parties :  "  Sec.  262.  All 
persons  having  an  interest  in  the  subject  of  the  action,  and  in  obtain- 
ing the  relief  demanded,  shall  be  joined  as  plaintiffs,  except  as  other- 

(a)  R.  S.  1881,  §  269.  (c)  Tate  v.  The  O.  &  M.  R.  R.  Co., 

(b)  Shoemaker    v.    The     Board    of    10  Ind.  174. 
Comm'rs,   etc.,   36   Ind.   175;    Hill  v. 

Marsh,  46  Ind.  218;  Johnson  v.  Gwinn, 
100  Ind.  466. 


54  JOINDER   OF   PARTIES.  [CHAP. 

wise  provided  in  this  chapter." d  It  is  important,  in  considering  the 
effect  of  this  statute,  to  determine  what  are  the  exceptions  referred  to 
as  "  provided  in  this  chapter." 

This  question  was  considered  in  the  case  of  Durham  v.  Hall,  67  Ind. 
123,  in  which,  after  quoting  the  above  section,  the  supreme  court  say : 
"  The  exceptions  referred  to  in  this  section  are  where  suits  are  brought 
by  an  executor,  administrator,  trustee  of  an  express  trust,  or  by  a  per- 
son expressly  authorized  by  statute,  or  where  one  or  more  of  several 
refuse  his  or  their  consent  to  join  as  plaintiffe,  or  where  the  case  is  one 
of  a  common  or  general  interest  to  many  persons,  or  where  the  parties 
are  so  numerous  as  to  render  it  impracticable  to  bring  them  all  before 
the  court.  See  sections  4  and  19  of  the  practice  act." 

With  the  exceptions  named  in  this  decision,  then,  all  persons  having 
a  unity  of  interest  must  be  joined  as  plaintiffs. 

97.  What  is  meant  by  unity  of  interest. — The  great  difficulty 
in  construing  this  statute  has  turned  upon  the  question,  what  must  be 
the  respective  interests  of  the  parties  to  authorize  them  to  join  as 
plaintiffs  ? 

At  common  law  the  parties  must  not  only  have  an  interest  in  the 
controversy,  but  they  must  have  the  same  interest.  The  practice  now 
so  common  of  rendering  different  judgments  in  favor  of  different  plaint- 
iffs, in  the  same  action,  was  unknown  to  the  common  law.  Under  the 
old  system  but  one  judgment  could  be  rendered  in  the  action  in  favor 
of  all  of  the  plaintiffs  jointly.  In  equity  the  rule  was  different.  While 
there  must  be  a  unity  of  interests,  it  was  not  necessary  that  their  in- 
terests should  be  the  same.  In  some  of  the  states  having  a  code  simi- 
lar to  ours,  the  courts  have  held  that  it  was  not  the  legislative  intent 
to  change  the  common  law  in  this  respect,  in  common-law  actions,  and 
that  the  statutory  provision  that  parties  having  different  interests  in 
the  same  subject-matter  could  join  as  plaintiffs  must  be  confined  to 
equitable  proceedings ;  but  this  falls  very  far  short  of  carrying  out  the 
intent  of  the  reform  legislation  on  this  subject.  Under  our  code,  we 
have  but  one  action.  Whether  the  relief  sought  is  legal  or  equitable, 
the  means  of  obtaining  it,  so  far  as  the  manner  of  bringing  the  suit  is 
concerned,  is  the  same.  The  section  providing  that  there  shall  be  no 
distinction  in  pleading  and  practice  between  actions  at  law  and  suits  in 
equity  is  followed  by  this  one  providing  who  shall  be  joined  as  plaint- 
iffs and  defendants  in  this  one  form  of  action  denominated  a  "  civil  ac- 
tion." There  is  no  distinction  made  in  this  section  between  actions  at 
law  and  suits  in  equity,  because  no  such  distinction  exists  under  the 

(d)  R.  S.  1881,§262. 


V.]  JOINDER   OF   PARTIES.  55 

preceding  section  of  the  same  statute.  Mr.  Pomeroj,  in  his  admirable 
work  on  Kemedial  Rights,  in  speaking  on  this  subject,  says:  "Re-' 
ferring  to  these  provisions,  it  is  plain  that  their  language  is  general,  in- 
clusive, without  exception,  and  applying  alike  to  all  kinds  and  classes 
of  actions.  Whatever  doctrines  in  reference  to  parties  plaintiff  the 
legislature  has  adopted;  whatever  regulations  it  has  established,  its  in- 
tention, as  shown  by  the  language  of  all  the  codes  but  one  or  two,  is 
to  apply  them  equally  to  legal  and  to  equitable  actions.  No  exceptions 
being  made,  nor  even  suggested,  the  courts  can  not,  unless  by  an  act 
of  positive  legislation,  by  an  act  of  direct  usurpation,  create  an  excep- 
tion and  say  these  general  terms  were  intended  to  apply  to  equitable 
suits  alone,  while  legal  actions  were  intended  to  be  left  outside  of  their 
scope  and  effect."6 

The  supreme  court  of  this  state  has,  in  laying  down  the  general 
principle  of  construction,  given  the  statute  the  same  broad  scope. f 

The  application  of  the  rule  in  particular  cases  has  not,  as  we  shall 
see  hereafter,  been  in  entire  harmony  with  the  rule  itself,8 

98.  Changes  wrought  by  the  code;  unity  of  interest. — 
Having  shown  that  in  this  state,  whatever  may  be  the'  construction 
placed  upon  it  elsewhere,  the  section  quoted  applies  as  well  to  actions 
at  law  as  to  suits  in  equity,  the  question  recurs,  what  change  has  this 
provision  of  the  code  wrought  in  the  law  of  parties  ?  We  have  already 
seen  that  with  the  two  exceptions  named  the  code  is  the  same  as  the 
common  law  as  to  the  necessity  of  uniting  in  one  action,  as  plaintiffs, 
all  persons  Avho  have  a  joint  interest.  The  effect  of  the  code  is  rather 
to  allow  a  greater  number  of  plaintiffs.  Parties  may  now  be  joined  as 
plaintiffs  who  were  not  proper  plaintiffs  under  the  old  system.  But  even 
under  the  present  system,  and  the  liberal  construction  placed  upon  a  part 
of  its  provisions  by  our  supreme  court,  there  must  still  be  a  unity  of 
interest  between  the  parties  to  allow  them  to  join  as  plaintiffs.  Several 
interests  can  not  be  enforced  in  the  same  action,  although  they  may  grow 
out  of  or  form  a  part  of  the  same  contract.  That  the  contract  under 
which  the  parties  claim  is  the  same  can  not  settle  their  right  to  join  in 
the  action.  If  there  is  a  unity  of  interest  in  the  money  or  specific 
thing  to  be  recovered,  the  parties  are  properly  joined  as  plaintiffs.  The 
true  test  of  their  right  to  join  must  be  their  interest  in  the  judgment 
they  may  be  entitled  to  recover. 

(e)  Pomeroy's  Kemedies,  §  195.  10   Ind.  174;    Goodnight   v.   Goar,  30 

(f )  Tate  v.  The  O.  &  M.  R.  R.  Co.,    Ind.  418;  Maple  v.  Beach.  43  Ind.  51. 

(g)   Post,  H  99,  100. 


56  JOINDER   OF   PARTIES.  [CHAP. 

99.  The  authorities.— In  the  case  of  Tate  v.  The  O.  &  M.  R.  R. 
Co.,  10  Ind.  174,  the  question  of  the  effect  to  be  given  to  the  language 
of  this  section  came  before  our  own  supreme  court.  The  action  was 
brought  by  William  Tate  and  ten  others,  each  of  whom  owned  lots 
fronting  on  a  certain  street  in  the  city  of  Lawrenceburg,  to  compel  the 
railroad  company  to  fill  up  the  street  fronting  their  lots,  in  which 
street  the  company  had  erected  an  embankment  and  trestle  work  for 
her  road  bed,  so  as  to  make  the  street  passable  or  to  remove  the  road. 
There  was  a  demurrer  to  the  complaint,  on  the  ground  of  misjoinder 
of  plaintiffs,  which  presented  the  question  whether  these  parties  were 
entitled  to  join  as  plaintiffs.  After  quoting  sections  262  and  269  (17 
and  19  of  the  old  code),  the  court  say,  per  Davison,  J.:  "  These  pro- 
visions substantially  re-enact  the  old  equity  rules  on  the  subject  of 
parties.  All  who  are  united  in  interest  must  join  in  the  suit,  unless 
they  are  so  numerous  as  to  render  it  impracticable  to  bring  them  all 
before  the  court,  while  those  who  have  only  a  common  or  general  in- 
terest in  the  controversy  may,  one  or  more  of  them,  institute  an  action. 
This,  however,  must  not  be  understood  as  allowing,  in  all  cases,  two  or 
more  persons,  having  separate  causes  of  action  against  the  same  de- 
fendant, though  arising  out  of  the  same  transaction,  (o  unite  and  pur- 
sue their  remedies  in  one  action.  Several  plaintiffs,  by  one  complaint, 
can  not  demand  several  matters  of  relief  which  are  plainly  distinct 
and  unconnected ;  nor  can  they  enforce  joint  and  separate  demands 
against  the  same  defendant.  But  where  one  general  right  is  claimed — 
where  there  is  one  common  interest  among  all  the  plaintiffs,  centering 
in  the  point  in  issue  in  the  cause — the  objection  of  improper  parties 
can  not  be  maintained."  h 

With  this  construction  of  the  statute,  it  was  held  that  the  parties 
were  properly  joined. 

In  Goodnight  v.  Goar,  30  Ind.  418,  this  question  was  again  pre- 
sented. The  following  instrument  was  sued  upon  : 

"JEFFERSON  TOWNSHIP,  TIPTON  COUNTY,  INDIANA. 

"  We,  the  undersigned  citizens  of  said  township,  agree  and  bind 
ourselves,  in  case  either  of  us  is  drafted  into  the  service  of  the  United 
States,  to  pay  our  proportionable  amount  to  hire  substitutes  to  fill  our 
places  ;  and  this  we  agree  not  only  for  the  present  impending  draft, 
but  for  all  other  calls  that  may  be  made  during  the  present  rebellion, 
unless  a  majority  shall  abandon  the  above  arrangement." 

Signed  by  five  persons.  The  suit  was  brought  on  this  contract  by 
three  of  its  signers  against  the  others,  alleging  that  the  plaintiffs  had 

(h)  11  Barb.  (S.  C.  R.)  516;  15  Id.  375;  Van  Sant.  PI.  130et  seq.;  1  Barb, 
Ch.  59;  Heagy  v.  Black,  90  Ind.  534. 


V.]  JOINDER   OF  PARTIES.  57 

been  drafted,  and  had  each  been  compelled  to  pay  certain  sums  of 
money  differing  in  amount  for  a  substitute,  and  that  the  defendants 
were  not  drafted.  The  question  presented  was  whether  the  plaintiffs 
had  such  an  interest  as  would  entitle  them  to  maintain  a  joint  action 
on  the  contract.  The  court  say:  "The  code  itself  is  not  exactly 
definite  as  to  who  may  be  joined  as  plaintiffs.  It  provides,  however, 
that  judgment  may  be  given  for  or  against  one.  or  more  of  several 
plaintiffs,  Avhich  was  the  practice  in  equity,  though  it  was  otherwise  at 
law.  It  also  provides  that  all  persons  having  an  interest  in  the  sub- 
ject of  the  action,  and  in  obtaining  the  relief  demanded,  shall  be 
joined  as  plaintiffs,  except  in  certain  cases  mentioned  in  the  nineteenth 
section.  Indeed,  the  code  seems  to  have  re-enacted  the  rules  which 
had  prevailed  in  courts  of  equity  as  to  who  must  join  as  plaintiffs,  and 
may  be  joined  as  defendants.  But  as  to  those  cases  in  which,  in 
equity,  plaintiffs  might  or  might  not  have  joined,  at  their  option,  the 
code  does  not  expressly  speak,  for  the  reason,  probably,  that  the  gen- 
eral rule  in  equity  in  relation  to  parties  plaintiff  was  not  founded  upon 
any  uniform  principle,  and  could  not  be  expounded  by  any  universal 
theorem  as  a  test.  And  it  may  have  been  thought  safer,  therefore,  to 
leave  each  case  to  be  decided  by  the  courts  upon  authority  and  analogy. 
That  it  was  intended  that  the  rules  of  pleading  in  courts  of  equity 
should  govern  the  subject  is  quite  evident  from  those  provisions  of  the 
code  which  prescribe  the  relief  to  be  granted,  and  to  whom ;  in  this 
respect  conforming  in  all  respects  to  the  established  practice  of  those 
courts — a  mode  of  administration  quite  impracticable  in  a  great  many 
cases,  unless  the  parties  might  be  as  in  chancery.  The  present  inquiry 
is,  then,  in  view  of  the  consideration  above  stated,  reduced  to  this : 
Could  these  plaintiffs  formerly  have  joined  in  chancery?  In  solving 
this  question  we  may  be  aided  by  considering  the  nature  of  the  con- 
tract upon  which  the  suit  is  brought.  The  obligations  which  it  imposes 
are  strictly  several,  each  party  for  himself  alone  becoming  bound  in  a 
certain  event  to  pay.  The  obligation  thus  assumed  is  under  the  facts 
alleged  to  each  one  of  the  plaintiffs  separately,  by  each  defendant,  for 
one-fifth  of  such  sum  as  that  plaintiff  was  obliged  to  pay  for  a  substi- 
tute for  himself.  In  the  case  before  us  there  is  in  the  plaintiffs  no 
community  of  interest  in  any  matter  involved  in  the  suit;  no  right 
common  to  all  is  claimed ;  every  thing  is  separate,  save  only  that  the 
•ight  asserted  by  each  is  founded  in  a  contract  which,  for  convenience, 
happens  to  be  on  the  same  sheet  of  paper.  We  have  failed  to  find 
any  warrant  in  the  adjudged  cases  for  a  joinder  of  plaintiffs  under  such 
circumstances." 

The  opinion  in  this  case  has  been  thus  fully  set  out  because  it  con- 


58  JOINDER   OF   PARTIES.  [CHAP. 

tains  a  full  and  correct  statement  of  the  construction  to  be  given  to  the 
section  under  consideration. 

100.  Application  of  the  rule. — Notwithstanding  this  clear  ex- 
position of  the  law  in  this  state,  declaring  that  the  intention  of  the 
legislature  was  to  adopt  the  equity  rules  as  to  parties,  this  construction 
has  not  been  fully  accepted  by  members  of  the  profession  who  prac- 
ticed under  the  old  system.  Innovations  upon  that  system  are  re- 
garded with  suspicion,  and  the  statutes  containing  them  are  given  the 
narrowest  possible  construction.  It  must  be  admitted  by  all  that  the 
distinctions  between  actions  at  law  and  suits  in  equity  are,  in  effect, 
abolished  by  the  statute ;  but,  in  the  place  of  the  real  line  that  divided 
these  two  classes  of  actions,  an  imaginary  line  is  drawn,  and  the  at- 
tempt is  made  to  maintain  the  distinction  that  once  existed  in  all 
things  save  the  name.  This  effort  on  the  part  of  old  practitioners  to 
keep  alive  this  distinction  that  has,  in  fact,  no  existence,  has  caused  a 
great  part  of  the  confusion  that  exists  in  the  practice  and  pleading  in 
this  state. 

Mr.  Iglehart,  in  his  work  on  practice,  shows  himself  to  belong  to 
that  class  of  the  profession  in  this  state  that  maintains  and  keeps  alive 
this  distinction.  He  says :  "It  has  been  said  that  the  code  adopts  the 
chancery  rule  as  to  parties,  but  this  remark  only  applies  in  a  qualified 
sense.  Where  tJie  action  would  Jiave  been  at  law  before  the  code,  the  common 
law  rule  still  prevails,  except  as  expressly  modified,  with,  perhaps,  this 
exception,  that  in  cases  even  where,  before  the  code,  the  remedy  was 
at  law,  but  where  the  action  relates  to  property,  real,  personal,  or 
mixed,  the  chancery  rule  as  to  parties  generally  applies,  as  will  here- 
after appear.  But  in  actions  for  the  recovery  of  money,  the  code  has 
wrought  no  material  change  in  the  rules  as  to  parties,  with  the  excep- 
tion of  the  cases  specially  mentioned,  and  which  will  be  noted  here- 
after. But  where  the  remedy  would  be  by  bill  in  chancery,  the  equity  rule 
prevails."* 

This  same  construction  is  maintained  by  the  learned  author  in  defin- 
ing who  are  proper  parties  defendant  under  the  code:  "It  may  be 
generally  remarked  that  all  who  would  be  proper  parties  defendant  in 
a  common  law  action  are  proper  parties  defendant  in  civil  actions  un- 
der the  code,  where  the  remedy  would  have  been  by  action  at  law  be- 
fore its  adoption.  .  .  .  All  persons  who  would  have  been  proper 
parties  defendant  to  a  bill  in  equity  are  proper  parties  defendant  to  a 
civil  action,  in  cases  where  the  remedy  before  the  code  was  in  a  court 
of  equity.  "J 

(i)  Iglehart's  Practice,  p.  29,  §  3.  (j)   Iglehart's  Practice,  p.  33,  §  16. 


V.]  JOINDER   OF   PARTIES.  59 

This  is  to  say  that  the  legislature  intended  to  enact  that,  hereafter, 
the  names  by  which  common  law  actions  and  suits  in  equity  are  dis- 
tinguished are  abolished,  and  the  remedy  shall,  determine  what  the 
practice  in  each  case  shall  be,  and  the  proper  parties  to  the  action.  If 
the  remedy  is  a  common  law  remedy,  the  common  law  rule  as  to  parties 
shall  prevail ;  if  the  remedy  is  equitable,  the  rules  in  equitable  pro- 
ceedings shall  prevail. 

If  such  is  the  construction  to  be  given  to  the  statute,  the  distinction 
still  exists  in  practice. 

But  the  supreme  court  has  held,  as  I  have  shown,  that  such  was  not 
the  intention  of  the  legislature.  The  question,  who  are  proper  parties, 
does  not  depend  in  the  least  upon  the  question  whether,  under  the  oH 
system,  the  remedy  would  have  been  at  common  law  or  in  equity.  It 
is  said  that  the  equity  rule  as  to  parties  is  adopted.  It  would  be  more 
correct  to  say  that  the  rules  adopted  are  substantially  the  same  as  those 
in  equity.  We  need  not  look  to  what  the  rules  in  equity  were,  as 
would  be  the  case  if  those  rules  were  adopted.  We  must  look  to  the 
statute,  and  the  statute  must  furnish  the  rule,  independent  of  the  ques- 
tion, what  would  the  action  or  the  remedy  have  been  at  common  law 
or  in  equity. 

The  idea  that  in   common-law  cases  the    common-law  rules  are 
adopted,  "  except  in  certain  cases,"  arises  from  the  fact  that  iu  certain, 
common-law  cases  the  rule  as  to  the  parties  is  the  same  as  in  equity. 
In  such  cases,  the  common-law  rule  is  adopted  in  the  sense  that  it  is 
not  changed. k 

Under  the  common-law  rule,  as  we  have  already  stated,  the  complaint 
must  not  only  show  a  unity  of  interest  on  the  part  of  plaintiffs,  but 
their  interest  must  be  the  same.  The  result  of  this  rule  was  that  if 
the  parties  suing  failed  to  prove  such,  an  interest  on  the  trial  they  must 
fail  in  their  action.  If  a  cause  of  action  was  shown  in  one  of  the 
plaintiffs,  but  not  the  other,  the  one  entitled  to  judgment  must  resort 
to  another  action.  This  was  the  legitimate  result  of  the  unvarying 
rule  that  the  rights  of  the  plaintiffs  must  be  the  same. 

101.  Effect  of  joining  too  many  plaintiffs. — The  question  of 
inisjoinder  of  parties  plaintiff  has  been  fully  and  thoroughly  considered 
in  more  than  one  case,  and  the  rule  that  where  two  or  more  persons 
bring  suit,  and  no  cause  of  action  is  shown  in  either,  the  complaint  is 

(k)  Scott  i7.  Crawford,  12  Ind.  410;  v.  Kiger,  23  Ind.  483;    Swift  v.   Ells- 

fccoby  v.  Fenton,  39  Ind.  275;   Matlock  worth,  10  Ind.  205;    Frear  v.  Bryan, 

?'.   Todd,   25   Ind.   128;    Woodford  v.  12  Ind.  343;   Conklin  v.  Bowman,  11 

Leaven  worth,  14   Ind.  311;    Emmons  Ind.  254. 


60  JOINDER  OF  PARTIES.  [CHAP. 

bad,  not  only  as  to  the  party  in  whom  no  cause  of  action  is  shown,  but 
as  to  all  of  the  plaintiffs,  has  been  strongly  adhered  to.  In  some  of 
these  cases  it  is  stated  in  unqualified  language  that  "  when  two  or  more 
plaintiffs  unite  in  bringing  a  joint  action,  and  the  facts  stated  do  not 
show  a  joint  cause  of  action  in  them,  a  demurrer  will  lie  upon  the 
the  ground  that  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action ;"  but,  upon  an  examination  of  the  cases,  it  will 
be  found  that  where  the  demurrers  were  sustained  it  was  on  the  ground 
that  the  complaint,  as  to  some  of  the  plaintiffs,  disclosed  no  cause  of 
action,  or  the  causes  of  action  were  strictly  several.  The  use  of  this 
language  must  be  taken  to  mean  a  unity  of  interest,  and  not  a  joint  in- 
terest, in  the  sense  in  which  that  term  was  used  at  common  law.1 

The  authorities  cited  must  settle  the  question  in  this  state,  that  in 
case  of  a  joinder  of  two  or  more  plaintiffs,  where  the  causes  of  action 
are  several,  or  where,  as  to  one  or  more,  no  cause  of  action  is  shown, 
the  complaint  is  bad  as  to  all  on  demurrer,  on  the  ground  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

We  have,  however,  another  section  of  the  statute  that  tends  strongly 
to  show  that  it  was  not  the  intention  of  the  legislature  that  such  con- 
struction should  be  given  to  the  section  quoted  above.  It  pro- 
vides :  "  Judgment  may  be  given  for  or  against  one  or  more  of  several 
plaintiffs,  and  for  or  against  one  or  more  of  several  defendants ;  and  it 
may,  when  the  justice  of  the  case  requires  it,  determine  the  ultimate 
right  of  the  parties  on  each  side  as  between  themselves."  m  It  lias  been 
held,  under  this  section,  that  a  judgment  may  be  rendered  in  favor  of 
one  or  more  plaintiffs  and  against  others,  when  they  sue  jointly." 

102.  Authorities  inconsistent  with  the  statute. — AVhile  it 
must  be  admitted  that  the  law  is  clearly  settled,  by  the  authorities 
cited,  that  the  want  of  a  cause  of  action  in  one  of  two  plaintiffs  suing 
jointly  renders  the  complaint  bad  as  to  both,  on  demurrer,  it  is  equally 
clear  that  these  cases  are  utterly  inconsistent  with  the  general  theory, 
well  established  in  this  state,  that  the  equitable  rules  as  to  parties  pre- 
vail, and  with  the  statute  last  quoted,  which  authorizes  not  only  differ- 
ent judgments  for  different  plaintiffs  suing  jointly,  but  judgment  in 

(1)  Berkshire  v.  Shultz,  25  Ind.  523;  (m)  R.  S.  1881,  f  568. 
Debolt  v.  Carter,  31  Ind.  355;  Good-  (n)  Hunt  v.  Standart,    15   Ind.  So: 
nijht  v.  Goar,  30  Ind.  418 ;  Lipperd  v.  Berkshire    v.    Shultz,    25    Ind.    5'2H; 
Edwards,  39  Ind.   165;    Neal   v.  Tho  Mandlove  v.  Lewi?,  9  Ind.  194;  Par- 
State,  49  Ind.  51;   Davenport  v.   Me-  ker  v.  Small,  58  Ind.  349;  Lockwood 
Cole,  28  Ind.  495;  Yater  v.  The  State,  v.  Joab,  27  Ind.  423. 
58  Ind.  299  ;  Ward  v.  Bennett,  20  Ind. 
440;  Nave  v.  Hadley.  74  Ind.  155. 


V.]  JOINDER  OF   PARTIES.  61 

favor  of  one  ana  against  others.  It  is  true  the  statute  does  not  au- 
thorize a  demurrer  for  misjoinder  of  parties,  but  it  does  authorize  the 
court  to  strike  out  the  name  of  the  plaintiff  in  whom  no  cause  of  ac.- 
tion  is  shown.  The  failure  of  the  legislature  to  make  a  misjoinder  of 
parties  cause  for  demurrer  indicates  clearly  that  it  was  the  legislative 
intent  that  such  misjoinder  should  not  be  a  sufficient  ground  of  de- 
murrer. The  court  has  so  construed  it  as  to  mean  that  this  cause  is 
included  in  the  general  one  that  the  complaint  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action.  The  result  is,  that  if  there 
should  be  a  judgment  on  demurrer  on  the  ground  that  no  cause  of  ac- 
tion is  shown  in  one  of  the  plaintiffs,  the  judgment  must  be  against 
all  of  the  plaintiffs,  where  it  is  admitted  that  the  complaint  shows  a 
cause  of  action  in  one  or  more,  but  if  the  defendant  fails  to  demur  and 
upon  the  trial  the  evidence  discloses  the  same  state  of  facts,  judgment 
may  be  rendered  in  favor  of  those  in  whom  a  cause  of  action  is  shown 
and  against  the  others.  Would  it  not  have  been  more  in  harmony  with 
the  provisions  of  the  code  to  have  held  that  the  misjoinder  was  not  a 
cause  for  demurrer  ?  In  the  case  of  Berkshire  v.  Shultz  the  court  say : 
"  Section  368  of  the  code  (438  New  Code)  provides  that  judgment 
may  be  given  for  or  against  one  or  more  of  several  plaintiffs.  This 
section  enables  the  court,  upon  the  hearing,  to  render  judgment  against 
a  plaintiff  who,  from  the  evidence,  is  shown  to  have  no  interest  in  the 
subject  of  the  action,  and  in  favor  of  a  co-plaintiff  who  is  entitled  to 
recover.  But  when  the  want  of  such  interest  is  apparent  on  the  face 
of  the  complaint,  it  would  be  useless  as  well  as  unjust  that  the  defend- 
ant should  be  compelled  to  litigate  a  cause  with  him  until  the  final 
hearing.  It  would  be  a  misjoinder  of  plaintiffs,  which,  we  think,  may 
be  taken  advantage  of  by  demurrer."  To  this  plea  of  hardship  and 
injustice  it  may  be  answered,  that  the  defendant  had  another  remedy 
by  which  to  relieve  himself  from  the  necessity  of  litigating  the  cause 
with  the  plaintiff  improperly  joined.  It  has  been  held  that  "many 
defects  may  exist  in  pleadings  besides  the  six  which  by  statute  may  be 
reached  by  demurrer.  These  must  be  objected  to  and  removed  upon 
motion."  °  The  better  practice  would  be  to  compel  the  defendant  to 
resort  to  his  motion  to  strike  out  the  names  of  such  parties  as  have  no 
ause  of  action  or  a  several  one,  differing  from  the  one  for  which  judg- 
ment is  demanded  in  the  complaint  or  authorized  by  its  allegations. 

103.  Executors,  administrators,  trustees  of  express  trusts, 
or  guardians  may  sue  alone. — It  has  already  been  shown  that 

(o)  Campbell  v.  Swasey,  12  Ind.  70;     15  Ind.  361;  The  Indianapolis,  etc.,  R. 
Johnson  v.  The  Crawfordsville,  etc.,  U.     R.  Co.  v.  Taffe,  11  Ind.  458. 
R.  Co.,  11  Ind.  280;  Wells  v.  Dickey, 


62  JOINDER   OF   PARTIES.  [CHAP. 

where  an  action  is  brought  by  an  executor,  administrator,  or  trustee  of  an 
express  trust,  or  guardians  of  idiots  and  lunatics,  the  person  for  whose 
benefit  suit  is  brought,  need  not  be  joined  as  plaintiff,  and  that  this 
rule,  expressly  provided  by  statute,  has  been  extended  to  guardians  of 
infants  by  the  supreme  court.p  But  in  this  class  of  cases  it  is  said 
that  the  action  is  really  prosecuted  by  the  idiot,  lunatic,  or  infant,  and 
for  his  benefit,  which  would  make  him  the  real  party  in  interest. 
This  is  a  departure  from  the  statute  requiring  that  the  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  aud  these  excep- 
tions should  not  be  extended  beyond  the  plain  terms  of  the  statute. 

104.  The  statute  authorizing  joinder  liberally  construed. 
—While  the  rule  has  been  laid  down  that  parties  who  join  in  a  com- 
plaint and  fail  to  show  a  joint  interest,  must  fail  in  their  action  in  case 
of  a  demurrer  to  the  complaint  for  want  of  sufficient  facts  stated,  the 
supreme  court  have  been  extremely  liberal  in  permitting  the  joinder  of 
parties  plaintiff.  The  unqualified  language  used  in  passing  upon  these 
demurrers  would  enforce  the  common-law  rule  in  all  its  strictness,  but 
the  particular  cases  where  the  question  of  the  joinder  of  parties  is 
raised  and  passed  upon  are  in  entire  harmony  with  the  theory  that  the 
code  enacts  the  equity  rule  as  to  parties.  Thus,  in  the  case  where  this 
rule  as  to  the  demurrer  was  first  declared,  the  action  was  brought 
jointly  by  a  creditor,  and  the  owner  of  real  estate  sold  on  execution, 
against  the  purchaser,  to  redeem,  and  it  was  held  that  the  plaintiffs 
were  properly  joined. q 

And  where  an  order  was  made  by  the  board  of  county  commissioners 
of  Franklin  county  that  the  sum  of  $117,600  should  be  applied  to  pay 
bounties  to  such  persons  as  might  volunteer  to  fill  the  quota  of  that 
county,  under  a  call  for  500,000  men  for  the  United  States  service, 
not  more  than  8300  to  be  paid  to  each,  suit  was  brought  by  eighty-five 
persons  jointly,  alleging  the  making  of  the  order,  and  that  they  had 
volunteered.  It  was  held  that  they  were  properly  joined  as  plaintiffs 
and  were  entitled  to  recover  the  sum  of  $25,800,  their  pro  rcda  share 
of  the  whole  amount,  at  $300  each/  This  was  strictly  a  common-law 
action  to  recover  money,  and  the  parties  suing  were  not  entitled  to  re- 
cover the  whole  amount  jointly,  but  each  was  entitled  to  recover  $300 
of  the  amount.  The  decision  was  clearly  right  under  the  statute,  if 
the  liberal  construction  is  given  it  that  the  equitable  rule  applies  to 
common-law  as  well  as  other  cases.  There  is  such  a  unity  of  interest 
as  brings  it  within  the  statute,  but  not  the  joint  interest  that  would 

(p)  Ante,  §?  60,  81.  (r)  Young  v.  The  Board,  etc.,  25  Ind. 

(q)  Berkshire  v.  Shultz,  25  Ind.  523.     295. 


V.]  JOINDER   OF   PARTIES.  63 

have  entitled  the  parties  to  join  in  an  action  at  common  law.     Each 
would  have  been  compelled  to  sue  for  the  $300  that  was  due  him. 

Parties  who  own  separate  pieces  of  property  fronting  on  a  street 
have  been  held  to  be  properly  joined  in  an  action  to  abate  a  nuisance 
affecting  all  of  the  property." 

Mr.  Iglehart,  in  his  work  on  practice, -says,  in  speaking  of  this  case  : 

"This  is  scarcely  reconcilable  with  principle  or  authority  elsewhere, 

as  both  the  right,  the  wrong,  and  the  injury  are  separate  and  several, 

and  not  joint,  and  it  is  very  clear  that,  by  the  chancery  rule,  this  is 

not  admissible ;  but  it  may  be  regarded  as  settled  in  this  state." ' 

The  terms  of  the  statute  are  amply  broad  enough  to  cover  the  case." 

Where  an  insolvent  debtor  entered  into  a  contract  with  a  third  party, 

by  which  the  latter  bound  himself  to  pay  certain  debts  of  the  former, 

it  was  held  that  such  debtor  might  join  as  plaintiff  with  one  of  his 

creditors,  against  such  third  party,  to  compel  the  payment  of  one  of 

the  debts  embraced  in  the  contract.7 

There  was  a  demurrer  to  the  complaint,  on  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  and  it  was  in- 
sisted that  there  was  no  "joint  right  of  action  shown."  It  must  be 
admitted  that,  if  the  rule  as  laid  down  in  Berkshire  v.  Shultz,  and  fol- 
lowed in  later  cases,  is  to  be  taken  as  it  is  expressed,  that  the  complaint 
must  show  a  joint  cause  of  action  in  all  of  the  plaintiffs,  the  complaint 
in  this  case  would  have  been  subject  to  demurrer.  There  was  no  joint 
cause  of  action  shown.  There  could-  be  no  joint  judgment  rendered 
in  favor  of  the  plaintiffs,  and  this  is  the  test  of  a  joint  right  at  common 
law.  The  parties  are  regarded  as  one,  and  but  one  judgment  can  be 
rendered  in  solido  in  favor  of  all.  But  the  supreme  court  avoids  this 
complication  by  claiming  that  this  case  is  not  within  the  rule  thus  laid 
down.  The  court  say:  "But  it  is  said  by  the  appellant's  learned 
counsel  that  there  is  no  joint  right  of  action  shown  in  the  complaint 
by  and  between  the  Gwyns  and  their  co-appellee,  James  H.  Hall,  and 
that,  for  this  reason,  the  appellant's  demurrer  to  the  complaint  for 
the  want  of  sufficient  facts  therein,  ought  to  have  been  sustained. 
In  support  of  this  point,  counsel  have  cited  the  decision  of  this  court 
in  the  case  of  Berkshire  v.  Shultz,  25  Ind.  523.  It  is  the  law  in  this 
state,  as  settled  by  many  decisions  of  this  court,  that  a  complaint  by 
two  or  more  plaintiffs  must  state  a  good  cause  of  action  in  favor  of  both  or 
all  of  the  parties  plaintiffs,  or  otherwise  a  demurrer  thereto  for  want  of 

(s)  Tate  v.  The  O.  &  M.  R.  K.  Co.,  ing  Hudson  v.  Maddison,  12  Sim.  416; 
10  Ind.  174.  1  Daniell's  Ch.  Pr.  350  (note  3). 

(t)  Iglehart's  Practice,  p.  3,  §  9,  cit-        (u)  R.  S.  1881,  §  262. 

(v)  Durham  r.  Hall,  67  Ind.  123. 


64  JOINDER   OF   PARTIES.  [CHAP. 

sufficient  facts  to  constitute  a  cause  of  action  must  be  sustained. w 
But  it  seems  to  us  that  this  rule  of  pleading  is  not  applicable  to  the 
complaint  in  the  case  at  bar." 

It  must  be  noticed  that  the  learned  judge  who  delivered  the  opinion 
in  this  case  does  not  state  the  rule  laid  down  in  the  other  cases  cor- 
rectly. The  rule,  as  stated  here,  is,  that  the  complaint  must  state  "  a 
good  cause  of  action  in  all  of  the  plaintiffs,"  while  the  rule  as  decided 
in  the  case  of  Berkshire  v.  Shultz,  and  followed  in  the  other  cases  re- 
ferred to,  is  that  the  complaint  must  show  a  "joint  cause  of  action  in 
all  of  the  plaintiffs."  This  is  a  very  material  modification  of  the  rule, 
and  would  authorize  parties  having  different  causes  of  action  growing 
out  of  the  same  subject-matter  to  join  as  plaintiffs.  This  I  have  al- 
ready attempted  to  show  was  the  intention  of  the  legislature  in  enact- 
ing the  code,  but  the  cases  are  clearly  the  other  way.  The  supreme 
court  say  the  case  under  consideration  is  not  within  the  rule  even  as 
stated  by  the  court,  and  the  reason  is  given:  "In  section  17  of  the 
practice  act  (262  of  new  code)  it  is  provided  that  all  persons  having 
an  interest  in  the  subject  of  the  action,  and  in  obtaining  the  relief  de- 
manded, shall  be  joined  as  plaintiffs  except  as  otherwise  provided  in 
this  article.  The  exceptions  referred  to  in  this  section  are  where  suits 
are  brought  by  an  executor  or  administrator,  trustee  of  an  express 
trust,  or  by  a  person  expressly  authorized  by  statute,  or  where  one  or 
more  of  several  refuse  his  or  their  consent  to  join  as  plaintiffs,  or  where 
the  case  is  one  of  a  common  or  general  interest  to  many  persons,  or 
where  the  parties  are  so  numerous  as  to  render  it  impracticable  to  bring 
them  all  before  the  court.  See  sections  4  and  19  of  the  practice  act 
(269  new  code).  It  is  clear  that  this  case  does  not  fall  within  any  of 
these  exceptions,  and  therefore  it  is  equally  clear  that,  as  to  the  point 
now  under  consideration,  the  case  must  be  governed  by  the  general 
rule  as  stated  in  said  section  17.  It  can  not  be  doubted  that  the 
Gwyns,  as  well  as  the  appellee,  Hall,  had  an  interest  in  the  subject  of 
this  action,  and  in  obtaining  the  relief  therein  demanded.  Under  the 
contract  sued  on  in  this  action,  the  appellees,  Israel  B.  and  James  R. 
Gwyn,  had  conveyed,  transferred,  and  delivered  to  the  appellant,  Dur- 
ham, all  of  their  property,  real  and  personal,  upon  the  faith  of  his 
agreement  that,  with  the  proceeds  of  such  property,  he  would  settle 
all  debts  owing  by  them  and  effect  a  final  adjustment  of  their  busine?*. 
The  Gwyns  owed  their  co-appellee,  James  H.  Hall,  the  debt  sued  f'»r 
in  this  action,  and  the  Gwyns,  as  well  as  Hall,  had  an  interest  in  the 
subject  of  this  action,  and  in  obtaining  the  relief  demanded,  namely, 

(w)  Citing  Lipperd  v.  Edwards,  39  172;  Neal  v.  The  State,  49  Ind.  51; 
Ind.  165;  Griffin  v.  Kemp,  4G  Tnd.  Parker  v.  Small,  58  Ind.  349. 


V.]  JOINDER   OF   PARTIES.  65 

the  application  by  Durham  of  the  proceeds  of  their  property  in  his 
hands  to  the  payment  of  their  debt  to  their  co-plaintiff  and  co-appellee, 
James  H.  Hall.  The  Gwyns  and  Hall  were,  therefore,  properly 
joined  as  plaintiffs  under  the  provisions  of  said  section  17  of  the  prac- 
tice act." 

It  will  be  seen  that  the  effort  is  made  to  show  that  the  case  is  not 
within  the  rule  laid  down  in  the  case  of  Berkshire  v.  Shultz,  and  the 
reason  given  is  that  the  case  is  not  within  any  of  the  exceptions  of  sec- 
tion 262  of  the  practice  act.  The  force  of  the  reason  given  is  not  ap- 
parent, especially  when  it  is  noticed  that  the  very  case  in  which  the 
rule  was  established  was  not  within  any  of  the  exceptions  of  the  statute. 
It  is  true  that  in  that  case  the  demurrer  was  overruled,  but  it  was  not 
on  the  ground  that  the  parties  were  not  within  any  of  the  exceptions 
in  the  statute.  Does  the  court  mean  to  say  that  unless  the  case  falls 
within  one  of  the  exceptions  in  the  statute  parties  who  have  an  interest 
in  the  subject-matter  of  the  action  may  join  as  plaintiffs,  whether  their 
right  of  action  is  joint  or  several  ?  If  so,  the  case  must  be  regarded  as 
a  complete  abandonment  of  the  rule  laid  down  in  Berkshire  v.  Shultz, 
and  that  case  and  cases  following  it  should  have  been  so  modified  as  to 
state  the  rule  correctly.  Much  of  the  confusion  in  our  practice  grows 
out  of  the  fact  that  rules  established  by  former  decisions  are  abandoned 
by  those  of  a  later  date,  without  any  modification  of  the  former  cases, 
or  any  effort  to  point  out  the  change  that  is  adopted.  The  profession 
is  thus  left  to  take  different  rules,  as  laid  down,  and  attempt  to  sort 
out  the  meaning  of  the  supreme  court  from  these  contradictory  decis- 
ions. It  may  be  noted  as  a  curious  fact,  that  while  the  court  in  the 
case  cited  refuses  to  apply  the  rule  as  established  in  the  other  cases,  for 
the  reason  that  this  case  is  "  not  within  any  of  the  exceptions  in  the 
statute,"  every  case  cited  as  establishing  the  rule  is  in  precisely  the 
same  condition.  Not  one  of  them  is  within  any  of  the  exceptions  in 
the  statute.1 

It  is  said  that  the  Gwyns  had  such  an  interest  in  the  subject  of  the 
action  as  would  authorize  them  to  join  as  plaintiffs,  for  the  reason  that 
it  was  to  their  interest  to  see  that  their  property  was  applied  to  the 
payment  of  their  debts. 

The  complaint  shows  that  the  action  was  not  one  to  compel  the  de- 
fendant to  apply  property  to  the  payment  of  a  debt.  It  was  simply 
an  action  to  recover  a  debt  that  a  third  party  had  promised,  for  a  suf- 
ficient consideration,  to  "  settle"  under  certain  conditions.  It  was  al- 
leged in  the  complaint  that  the  creditor  had  accepted  the  terms  of  the 

(x)  Shoemaker  v.  The  Board,  etc.,  36  Ind.  175. 
5 

* 


66  JOINDER   OP   PARTIES.  [CHAP. 

agreement,  and  demanded  payment  from  the  third  party.  In  this  class 
of  cases  it  is  well  settled  that  the  creditor  may  sue  the  party  who  as- 
sumes the  payment  of  the  debt  without  joining  the  original  creditor. y 

When  this  case  of  Durham  v.  Bischof  was  first  before  the  supreme 
court  it  was  decided  that  the  Gwyns  should  have  been  made  defend- 
ants.2 And  that  would  have  been  much  the  better  practice.3 

In  the  case  of  Hardy  v.  Blazer  the  defendants  had  agreed  to  pay  the 
debts  of  A.,  without  specifying  the  debts,  and  B.,  one  of  the  cred- 
itors, brought  his  suit  to  recover  his  debt  without  joining  A.  as  a  party 
either  as  plaintiff  or  defendant.  It  was  held  that  the  creditor  was  the 
proper  party  to  bring  the  action,  and  that  A.  was  a  necessary  party 
defendant.1" 

Where  property  was  taken  by  the  sheriff  on  two  executions  in  favor 
of  different  persons,  and  one  delivery  bond  was  given,  the  execution 
defendant  refusing  to  deliver  the  property,  suit  was  brought  by  both  of 
the  execution  plaintiffs  on  the  bond.  It  was  objected  that  the  action 
could  not  be  maintained,  "  because  the  interests  were  several,  and  the 
relief  prayed  for  was  joint,"  but  the  court  held  that  the  plaintiffs  had 
such  an  interest  in  the  subject-matter  as  would  entitle  them  to  sue  un- 
der section  262,  and  that  a  judgment  for  each  of  the  plaintiffs  for  the 
amount  due  him  was  proper.0 

105.  When  one  party  may  sue  for  all. — The  statute  authorizes 
one  or  more  to  sue  for  the  benefit  of  all,  where  the  parties  interested 
are  numerous,  and  it  is  impracticable  to  bring  them  all  before  the 
court. d 

This  clause  of  the  statute  is  not  definite  in  its  terms,  and  has  need 
of  construction.  It  has  been  held  that  the  complaint  need  not  show, 
in  such  case,  that  the  persons  for  whom  the  plaintiff  sues  belong  to 
any  association  or  class,  but  that  it  is  only  necessary  to  describe  the 
persons  interested  with  as  much  certainty  as  the  nature  of  the  contro- 
versy will  admit.6 

(y)  Bird  v.  Lanius,  7  Ind.  615;  De-  Arnold  v.  Lyman,  17  Mass.  400;  Fitch 

vol  v.  Mclntosh,  23  Ind.  529;  Cross  r.  v.  Chandler,  4  Gush.  254;  Hall  v.  Mar- 

Truesdale,  "28  Ind.  44;  Day  v.  Patter-  ston,  17  Mass.  575;  Felch  v.  Taylor,  13 

son,  18  Ind.  114;  Mathews  v.  Ritenour,  Pick.  133;  Carnegie  v.  Morrison,  2 

31  Ind.  31 ;  Davis  r.  Galloway.  30  Ind.  Met.  381 ;  Hinkley  v.  Fowler,  15  Me. 

112;  Miller  t>.  Billingsley,  41  Ind.  489;  285;  Mellen,  Adm'x,  v.  Whipple,  1 

Hardy  v.  Blazer,  29  Ind.  226.  Gray,  317. 

(z)  Durham  v.  Bischof,  47  Ind.  211.  (c)  Mandlove  v.  Lewis,  9  Ind.  194. 

(a)  Hardy  T.  Blazer,  29  Ind.  226.  (d)  R.  S.  1881,  §  269. 

(b)  Citing  Elwoodt).  Monk,  5«Wend.  (e)  Sourse  v.  Marshall,  23  Ind.  194. 
235  ;  Beers  v.  Robinson,  9  Pa.  St.  229  ; 


V.]  JOINDER  OF  PARTIES.  67 

This  being  one  of  the  exceptions  to  the  rule  requiring  that  all  those 
having  an  interest  in  the  controversy  should  be  joined,  the  facts  neces- 
sary to  bring  the  case  within  the  exception  should  be  stated  in  the 
complaint.  The  party  who  sues  must  have  an  interest  in  the  contro- 
versy common  with  those  for  whom  he  sues,  and  there  must  be  that 
unity  of  interest  between  all  of  the  parties  that  would  entitle  them  to 
maintain  the  action  if  suit  were  brought  by  them  jointly.  The  action  i^. 
in  effect,  brought  by  all  of  the  parties,  as  the  party  named  as  the  plain- 
tiff stands  simply  as  the  representative  of  himself  and  all  of  the  others. 
If  the  complaint  would  not  authorize  all  of  the  parties  to  join  in  the 
action,  it  follows  that  the  action  can  not  be  maintained  by  him,  for 
them,  and  the  complaint  may  be  tested  in  the  same  manner  as  if  all 
had  joined.  To  this  end,  that  the  court  may  determine  the  right,  not 
only  of  the  party  named  to  sue  for  the  others,  but  of  the  parties  them- 
selves to  join  in  the  action,  the  facts  showing  their  number  and  their 
interest  in  the  controversy  should  be  fully  and  clearly  stated  in  the 
complaint/ 

106.  In  actions  relating  to  real  estate :  tenants  in  com- 
mon.— In  actions  relating  to  real  estate  all  parties  interested  in  the 
relief  demanded  may  be  joined  as  plaintiffs.     If  the  action  is  to  re- 
cover an  entire  tract  of  laud,  owned  jointly  or  as  tenants  in  common, 
all  the  owners  are  necessary  parties ;  but  a  tenant  in  common  may  sue 
and  recover  his  undivided  share  of  the  real  estate  without  joining  the 
other  owners,  and  a  tenant  in  common  may  sustain  an  action  for  pos- 
session against  a  co-tenant  who  denies  his  right  to  possession. §     Where 
land  is  owned  by  tenants  in  common,  they  are  properly  joined  in  an 
action  for  injury  to  the  land ;  but  any  tenant  in  common  may  bring 
his  separate  action  for  the  injury.     It  is  otherwise  where  the  ownership 
is  joint.     There  all  the  owners  must  join  as  plaintiffs.11     Where  rent  is 
due  to  tenants  in  common,  and  the  rent  is  entire,  they  may  join.     If 
the  amount  to  be  paid  to  each  is' fixed  by  the  leasing  they  must  sue 
separately.' 

107.  Actions  to  recover  real  estate. — In  actions  to  recover 
real  estate  the  statute  provides  that  "  where  there  are  two  or  more 

(f)  Blair  v.  Shelby  Co.  Agricultural     Bethal  v.  McCool,  46  Ind.  303;  Ches- 
Joint  Stock  Ass'n,  28  Ind.  175;  Shoe-     round  v.  Cunningham,  3  Blkf.  82. 
maker  v.  The  Board  of  Comm'rs,  etc.,         (h)  Pomeroy's  Remedies,  $  190. 

36  Ind.  175;  Tate  v.  The  O.  &  M.  R.         (i)  Pomeroy's  Remedies,  §§  187-219 ; 
R.  Co.,  10  Ind.  174.  Marshal  v.  Mosely,  21  N.  Y.  280-287; 

(g)  Nelson   v.  Davis,  35   Ind.  474;     Cruger  v.    McLaury,   41    N.  Y.   219 » 

King  v.  Anderson,  2  Ind.  385. 


68  JOINDER    OF   PARTIES.  [CHAP. 

plaintiffs  or  defendants,  any  one  or  more  of  the  plaintiffs  may  recover, 
against  one  or  more  of  the  defendants,  the  premises  or  any  part 
thereof,  or  interest  therein,  or  damages,  according  to  the  right  of  the 
parties.  "•* 

Under  this  section,  no  matter  whether  the  proper  parties  were 
joined  or  not,  any  plaintiff  might  recover  his  interest,  even  though  no 
interest  is  shown  in  his  co-plaintiffs ;  k  but  this  could  not  be  done, 
even  under  this  liberal  statute,  where  the  plaintiff  shown  to  have  an 
interest  owns  the  same  jointly  with  another  who  is  not  joined  as 
plaintiff.1 

108.  By  trustee  to  foreclose  mortgage. — In  an  action  by  a 
trustee  to  foreclose  a  mortgage,  it  is  not  necessary  to  join  the  cestui  que 
trust  as  a  plaintiff,  but  the  cestui  que  trust  may  be  joined.™ 

109.  Actions  to  contest  •wills. — Actions  to  contest  the  validity 
of  wills,  or  to  set  aside  the  probate  thereof,  may  be  brought  by  any 
person  interested,  and  without  joining  other  persons  having  a  common 
interest;  but  all  persons  having  a  common  interest  may  join  as  plaintiffs." 

no.  Married  women. — A  married  woman  must  sue  jointly  with 
her  husband,  except :  1.  When  the  action  concerns  her  separate  prop- 
erty the  husband  may  or  may  not  be  joined,  at  her  option.  2.  When 
the  action  is  between  herself  and  her  husband.0  In  the  first  of  these 
two  classes  of  actions  the  husband  may  be  joined  as  plaintiff.  The 
statute  is  only  intended  to  be  permissive,  and  not  to  prohibit  the  join- 
der of  the  husband  in  the  action. p 

in.  Actions  for  injury  to  the  wife. — It  was  the  common- law 
rule  in  actions  to  recover  damages  for  injury  to  the  wife,  that  the  hus- 
band and  wife  must  join  as  plaintiffs,  and  this  rule  was  not  changed 
by  the  code.q  In  case  of  the  death  of  the  wife  from  the  injury,  the 
cause  of  action  died  with  her  at  common  law,  and  no  action  could  be 
maintained  therefor/  By  our  statute,  however,  the  cause  of  action 

(j)  R.  S.  1881,  §  1060.  Ind.  418;  Gee  v.  Lewis,  20  Ind.  449; 

(k)  Doe  v.  Abernathy,  7  Blkf.  442.  Wilkins  v.  Miller,  9  Ind.  100;  Flenner 

(1)  Parker  r.  Small,  58  Ind.  349-353.  v.   Flenner,   29    Ind.   564;    Carver   v. 

(m)  R.  S.   1881,   I  252;    Wright  v.  Carver,  53  Ind.  241. 

Bundy,  11  Ind.  398.  fp)  Hollingsworth   v.  The   State,  8 

(n)  R.  S.  1881,  H  2596,  2599;   Morse  Ind.  257;  Call  v.  Byram,  39  Ind.  499. 

v.  Morse,  42  Ind.  365-368;  Neiderhaus  (q)  R.  S.  1881,  §  254. 

v.  Heldt,  27  Ind.  480.  (r)  Long  v.  Morrison,  14  Ind.  595, 

(o)  R.  S.  1881,  §  254 ;  McCormack  v.  and  authorities  cited. 
Hyatt,  33  Ind.  546 ;  Adams  v.  Sater,  19 


V.]  JOINDER   OF  PARTIES.  69 

for  an  injury  resuming  in  death  survives  to  the  personal  representative 
where  the  deceased  might  have  maintained  an  action  had  she  lived.8 

112.  Who  must  sue  for  an  injury  causing  the  death  of  the 
wife. — After  the  enactment  of  this  statute,  where  the  action  was  for 
the   death  of  a  married   woman  whose  husband   survived  her,  the 
question  was  presented,  who  should  bring  the  action  ?     It  was  held 
that,  as  the  right  of  the  personal  representative  to  sue  depended  upon 
the  question  whether  the  deceased  might  have  maintained  the  action 
had  she  lived,  and  as  she  could  only  sue  by  joining  her  husband,  the 
administrator  must  sue  jointly  with  the  husband,  and  could  not  sue 
alone.1 

In  this  case  the  court  say :  "  The  right  of  action  may  be  regarded 
as  continued  by  the  statute  in  the  personal  representative,  just  as  it 
existed  m  the  deceased.  Hence,  in  this  case  it  caused  the  right  of  ac- 
tion to  survive  to  the  representative  of  the  wife  as  one  to  be  prosecuted 
jointly  with  the  surviving  husband.  .  .  .  Under  this  view,  the 
conclusion  would  be  that  the  action  is  maintainable,  but  that  it  should 
have  been  brought  in  the  joint  names  of  the  husband  and  adminis- 
trator." u 

113.  Must  be  some  person  entitled  to  damages  recovered, 
or  no  action  can  be  maintained. — It  must  be  observed  that  it  is 
not  in  every  case  that  the  personal  representative  can  maintain  the  ac- 
tion, even  where  the  deceased  could  have  brought  the  suit  if  living. 
It  is  provided  by  the  statute  that  "  the  damages  must  inure  to  the  ex- 
clusive benefit  of  the  widow  and  children,  if  any,  or  next  of  kin,  to  be 
distributed  in  the  same  manner  as  personal  property  of  the  deceased." 

It  has  been  held  that  the  right  to  sue  in  this  class  of  cases  is  purely 
statutory,  as  no  such  action  could  have  been  maintained  at  common 
law.  The  right  of  action  died  with  the  person,  and  therefore  it  is 
necessary  to  show  that  the  deceased  left  some  person  surviving  him 
who  would  be  entitled  to. any  damages  that  might  be  recovered/ 

It  will  be  noticed  that  the  statute  makes  no  provision  for  the  hus- 
band in  case  of  the  death  of  the  wife.  If  the  husband  is  entitled  to 
any  part  of  the  damages,  it  must  be  as  "  next  of  kin." 

(s)  R.  S.  1881,  I  284;  Long  v.  Mor-  .!.,  M.  &  I.  R.  R.  Co.  v.  Hendricks,  41 
rison,  14  Ind.  595;  The  Indianapolis,  Ind.  48. 

etc.,  R.  R.  Co.  v.  Keely,  23  Ind.  133;         (t)  Long  v.  Morrison,  14  Ind.  595. 
The   Jeffersonville,  etc.,  R.  R.   Co.  v.        (u)  Id.  page  599. 
Swayne,  26  Ind.  477;  The  Pittsburgh,         (v)  The   I,,  P.  &   C.  R,   R.    Co.   v. 
etc.,R.R.Co.t>.Vining,27Ind,513;The     Keely,  23  Ind.  133;  The  J.,  M.  &  L 

R.  R.  Co.  v.  Hendric-ks,  41  Ind.  48-77. 
i 


70  JOINDER   OF    PARTIES.  [CHAP. 

As  under  the  construction  given  the  statute  by  the  supreme  court, 
the  right  of  the  personal  representative  to  sue  depends  upon  the  ques- 
tion whether  there  is  any  person  entitled  to  receive  the  benefit  of  the 
damages  recovered,  it  is  important  to  determine  the  rights  of  the 
husband  in  case  of  the  death  of  the  wife  without  children  or  other 
kindred,  and  leaving  a  husband  surviving  her.  If  the  husband  is  the 
next  of  kin  the  suit  may  be  brought,  and  the  damages  will  inure  to 
his  benefit.  Strictly  speaking,  husband  and  wife  are  not  kindred,w  but 
under  our  statute  of  descents  they  inherit  one  from  the  other. z 

The  supreme  court  has  not  been  called  upon  to  construe  the  statute 
in  this  respect,  but  the  question  may  arise  at  any  time.  When  it  does 
it  will  probably  be  held  that  the  intention  of  the  legislature  was,  that 
if  there  is  any  person  living  who  would  inherit  any  part  of  the  personal 
estate  of  the  deceased,  such  person  would  be  entitled  to  the  damages 
recovered,  and  the  administrator  would  have  a  right  of  action.  This 
is  evident  front  the  fact  that  the  statute  provides  that  damages  recovered 
shall  be  distributed  in  the  same  manner  as  personal  property  of  the 
deceased. 

When  the  wife  dies  intestate,  leaving  no  children,  or  father  or 
mother,  the  husband  is  entitled  to  the  whole  of  her  estate,  real  and 
personal.7  But  the  supreme  court,  though  not  passing  upon  the  precise 
question  now  under  consideration,  has  shown  an  inclination  to  take  a 
different  view  of  the  statute  from  the  one  just  expressed.  If  the 
statute  is  to  be  so  construed  as  to  entitle  such  persons  to  the  damages 
recovered,  as  would  inherit  from  the  deceased,  there  is  no  good  reason 
why  the  right  of  action  for  the  damages  should  not  be  regarded  as 
assets  of  the  estate.  It  has  been  held,  however,  that  the  right  of 
action  for  the  damages  is  not  assets  of  the  estate  of  the  deceased.2 

In  one  of  the  cases  cited,  it  is  said :  "  The  statute  does  not  profess 
to  revive  the  cause  of  action  for  the  injury  to  the  deceased  in  favor  of 
his  personal  representative,  nor  is  such  its  legal  effect,  but  it  creates 
a  new  cause  of  action  unknown  to  the  common  law.  The  action  given 
by  the  statute  is  for  causing  the  death  by  a  wrongful  act  or  omission, 
in  a  case  where  the  deceased  might  have  maintained  an  action  had  he 
lived,  for  an  injury  by  the  same  act  or  omission. 

"  The  right  of  compensation  for  the  bodily  injury  of  the  deceased, 
which  died  with  him,  remains  extinct.  The  right  of  action  created 

(w)  2   Kent's   Com.   136,    citing    3  (y)   R.  S.  1881,  §  2490. 

Vesey,  246,  247 ;  14  Ibid,  381,  382;  18  (z)  The    Jeffersonville,    etc.,    11.    K. 

Ibid,  49,  55,  56.  Co.  v.  Swayne,  26  Ind.  477  ;  The  ,Jef- 

(x)  Fletcher  v.  Holmes,  32  Ind.  497;  fersonville,  etc.,  R.  K.  Co.  v.  Hendricks, 

R.  S.  1881,  ??  2483,  2485.  41  Ind.  48. 


A'.]  JOINDER   OF   PARTIES.  71 

by  the  statute  is  founded  on  a  new  grievance,  namely,  causing  the 
death,  and  is  for  the  injury  sustained  thereby  by  the  widow  and  children, 
or  next  of  kin  of  the  deceased,  for  the  damages  must  inure  to  their  ex- 
clusive benefit.  They  are  recovered  in  the  name  of  the  personal  repre- 
sentative of  the  deceased,  but  do  not  become  assets  of  the  estate. 
The  relation  of  the  administrator  to  the  fund,  when  recovered,  is  not 
that  of  the  representative  of  the  deceased,  but  of  a  trustee  for  the 
benefit  of  the  widow  and  next  of  kin.  The  action  is  for  their  exclusive 
benefit,  and  if  no  such  person  existed,  it  could  not  be  maintained."  a 

If  this  is  taken  as  a  correct  statement  of  the  law,  and  it  is  the  law 
of  this  state,  this  statute  must  be  construed  independently  of  the  stat- 
ute of  descents.  It  is  the  persons  named  in  the  statute  who  sue,  by 
their  trustee,  the  personal  representative.  The  husband  is  not  one  of 
those  named  in  the  statute,  therefore  he  can  not  sue  by  a  trustee.  This 
is  the  effect  of  the  decision;  but  when  the  direct  question,  as  to  the 
right  of  the  personal  representative  to  sue  for  the  benefit  of  the  hus- 
band arises,  it  is  believed  the  right  will  be  extended  to  him. 

This  right  of  compensation  for  the  bodily  injury  to  the  deceased  the 
supreme  court  say  is  not  revived  by  the  statute.  The  cause  of  action 
is  a  new  one,  for  "causing  the  death,"  and  the  right  of  the  trustee  to 
sue  depends  upon  the  right  of  the  husband  to  sue.  If  he  could  not 
sue  the  personal  representative  can  not  sue  for  him.  Following  this 
course  of  reasoning  the  supreme  court  say,  for  an  injury  to  the  person 
of  the  wife  the  husband  must  join  with  her,  therefore  the  personal 
representative  must  join  the  husband. b  But  the  later  case  of  theJeffer- 
sonville,  etc.,  R.  R.  Co.  v.  Swayne  is  not  in  harmony  with  this  decision 
in  this  respect.  It  is  there  held  that  the  action  for  the  injury  to  the 
wife  is  not  revived,  but  the  action  created  by  the  statute  is  an  inde- 
pendent one  for  the  death  of  the  person.  If  the  action  of  the  personal 
representative  is  not  for  personal  injury  to  the  wife,  the  rule  that  he 
must  join  the  husband,  because  for  personal  injury  to  the  wife,  she,  if 
living,  must  have  joined  the  husband,  leaves  the  rule  with  the  reason 
for  it  taken  away.  It  would  be  about  as  reasonable  to  say :  If  the 
person  for  whom  the  personal  representative  sues  is  an  infant  the 
personal  representative  would  have  to  sue  by  next  friend,  because  the 
infant,  if  living,  could  only  sue  in  that  way.  The  later  case  conflicts 
with  the  other  in  another  respect.  It  holds  that  the  clause  of  the  stat- 
ute, with  reference  to  the  "  ability  of  the  deceased  to  maintain  the  ac- 
tion if  death  had  ensued,  is  inserted  solely  for  the  purpose  of  defining 
the  kind  and  degree  of  delinquency  with  which  the  defendant  must  be 

(a)  The   Jeffersonville.    etc.,    R.    R.         (b)   Long  v.  Morrison,  14  Ind.  595. 
Co  v.  Swayne,  26  Ind.  477. 


72  JOINDER   OF   PARTIES.  [CHAP. 

chargeable  in  order  to  subject  him  to  the  action."    The  language  is 
quoted,  with  approbation,  from  a  New  York  case.0 

This  being  true,  the  question  whether  the  deceased  could  have  sued 
alone,  because  of  her  being  a  married  woman,  could  have  nothing  to 
do  with  the  right  of  the  personal  representative  to  sue,  or  the  manner 
of  bringing  the  suit. 

114.  Two  causes  of  action  arise  in  case  of  injury  to  wife : 
when  husband  may  sue. — In  case  of  injury  to  the  wife,  two  causes 
of  action  arise — one  in  favor  of  the  husband'  alone,  for  loss  of  services 
and  expenses;  the  other  in  favor  of  the  wife,  who  must  sue  jointly 
with  her  husband. d 

In  case  of  the  injury  of  the  wife,  causing  death,  where  she  leaves  a 
husband  surviving  her,  and  children  or  other  relatives  at  common  law, 
the  husband  has  his  cause  of  action  for  loss  of  services  and  expenses. 
The  statute  creates  a  new  cause  of  action  which,  as  I  construe  it, 
authorizes  the  administrator  to  sue,  for  the  husband's  benefit,  for  dam- 
ages growing  out  of  the  same  injury.  Does  the  statute  take  away  the 
common-law  right  of  the  husband  to  sue,  or  is  it  simply  cumulative ; 
thus  allowing  the  husband  to  sue  for  himself,  and  the  administrator 
to  sue  for  him,  in  separate  actions  and  for  the  same  injury? 

There  is  nothing  in  the  statute  that  indicates  an  intention  to  take 
from  the  husband  his  common  law  right ;  but,  as  we  have  seen,  the 
statute  does  not  revive  the  right  to  sue  for  the  personal  injury  that,  at 
common  law,  must  have  been  brought  by  husband  and  wife  jointly, 
but  creates  a  new  right  growing  out  of  the  death.6  The  damages  re- 
covered under  the  statute  do  not  belong  to  the  husband  alone,  if  any 
part  of  it  does.  It  might  occur  that  damages  in  both  cases  would  in- 
ure to  the  husband,  but  this  would  furnish  no  reason  for  holding  that 
the  husband's  common-law  right  to  sue  was  taken  away  by  the  statute. 

The  right  of  the  husband  to  recover  damages  is  based  upon  his  loss, 
while  the  statutory  provision  allows  a  recovery  for  the  death  of  the 
wife,  and  depends  upon  her  right  to  sue.  The  damages  to  be  recovered 
are  different,  just  as  they  were  at  common  law,  and  the  two  actions 
may  still  be  brought,  but  not  jointly.  This  proposition  is  much 
clearer  under  the  construction  given  the  statute  by  the  early  case  of 
Long  v.  Morrison,  that  the  intention  was  to  continue  the  common-law 
right  of  action  to  the  personal  representative,  where  the  injury  resulted 

(c)  Whitford  v.  The  Panama  R.  R.     Swinney  v.  Navo,  22  Ind.  178;  Long 
Co.,  23  N.  Y.465;  Woodford  v.  Michi-     v.  Morrison,  14  Ind.  595. 

gan,  etc.,  R.  R.  Co.,  10  Ohio  St.  121.  (e)  The    Jeffersonville,    etc.,    R.   R. 

(d)  Rogers  v.  Smith,  17   Ind.   323;     Co.  v.  Swayne,  20  Ind.  477. 


V.]  JOINDER   OF   PARTIES.  73 

in  death.  An  entirely  different  construction  is  given  the  statute  in 
The  Jefferson ville,  etc.,  R.  R.  Co.  v.  Swayne,  which  leaves  no  guide  as 
to  what  shall  be  taken  into  the  account  in  estimating  the  damages,  ex- 
cept the  statutory  limitation  of  the  amount. 

115.  On  notes  held  by  different  parties,  secured  by  same 
mortgage,  parties  can  not  join  as  plaintiffs. — Where  a  mort- 
gage is  to  secure  different  notes,  falling  due  at  different  times,  and  the 
notes  have  been  assigned  to  and  are  held  by  different  parties,  they  can 
not  join  in  an  action  to  foreclose  the  mortgage.     The  notes  are  the  evi- 
dence of  indebtedness,  and  the  debts,  when  assigned,  are  entirely  sepa- 
rate and  distinct.     Where  suit  is  brought  by  one  of  the  holders  of  such 
notes,  he  may  make  the  holders  of  the  other  notes  parties  defendant, 
but  they  have  not  that  unity  of  interest  necessary  to  make  them 
proper  plaintiffs  in  the  same  action/ 

Our  supreme  court  has  decided  that,  where  the  notes  are  held  by  dif- 
ferent parties  and  secured  by  the  same  mortgage,  the  mortgage  may  be 
treated  as  several,  the  same  as  if  a  separate  mortgage  were  given  to  se- 
cure the  payment  of  each  note,  and  that  the  holders  of  such  notes  are 
entitled  to  priority  according  to  the  dates  when  the  several  notes  fall 
due.8 

WHO   MAY   BE  JOINED    AS   DEFENDANTS. 

116.  The  statute. — "Any  person  may  be  made  a  defendant  who 
has  or  claims  an  interest  in  the  controversy  adverse  to  the  plaintiff,  or 
who  is  a  necessary  party  to  a  complete  determination  or  settlement  of 
the  questions  involved."11 

This  statute  is  very  broad  in  its  terms.  It  is  not  necessary,  as  it  is 
in  the  case  of  plaintiffs,  that  the  party  should  have  an  interest  in  the 
controversy.  If  he  claims  an  interest  that  is  adverse  to  the  plaintiff, 
he  is  a  proper  defendant ;  the  object  being  to  settle  the  whole  contro- 
versy in  one  action.  It  is  not  necessary  that  a  unity  of  interest  should 
exist  between  defendants.  The  true  test  is  their  relation  to  the 
plaintiff,  whether  adverse  or  not,  and  not  their  relation  to  each  other. 
No  matter  how  diverse  their  rights  or  claims  of  right,  if  each  has  or 
claims  an  interest  adverse  to  the  plaintiff,  all  may  be  brought  before 
the  court,  and  will  be  bound  by  such  judgment  as  may  be  rendered, 

(f )  Pomeroy's  Remedies,  §  340.  man,  19  Ind.  30;  Sample  v.  Rome,  24 

(g)  Murdock   v.  Ford,  17   Ind.  52;  Ind.  208-215;  Davis  v.  Langsdale,  41 
Harris  v.  Harlin,  1 4  Ind.  439;   Hough  Ind.  399;    Zook  v.  Clemmer,  44  Ind. 
r.    Osborn,    7    Ind.    140;    Stanley   v.  15-21. 

Beatty,  4  Ind.  134;  The  State  Bank  r.         (h)  R.  S.  1881,  g  268. 
Tweedy,  8  Blkf.  447;    Crouse  v.  Hoi- 


74  JOINDER   OF   PARTIES.  [CHAP. 

provided,   only,  that   the   subject-matter  of  their  interest  or  claims 
must  be  the  same. 

117.  Necessary  parties  must  be  and  proper  parties  may 
be  joined. — It  must  not  be  understood  that  the  plaintiff'  is  bound  to 
make  all  persons  having  or  claiming  an  adverse  interest  in  the  con- 
troversy parties  defendant  in  bringing  his  action,  nor  is  it  left  wholly 
within  his  discretion  who  shall  be  joined.     The  distinction  is  made 
between  necessary  and  proper  parties  defendant.     When  it  is  determined 
whether  a  party  belongs  to  one  or  the  other  of  these  classes,  the  ques- 
tion whether  the  plaintiff  is  bound  to  make   him  a  party  or   not  is 
answered.     If  he  is  a  necessary  party  he  must  be  joined.     If  a  proper 
party  he  may  be  joined  or  not  at  the  option  of  the  plaintiff. 

118.  Who  are  necessary  defendants. — It  becomes  important 
in  considering  who  should  be  joined  as  defendants  to  determine  who  are 
necessary  parties.     This  is  a  question  that  is  not  always  easily  answered, 
and  when  the  difference  between  necessary  and  proper  parties  is  defined, 
it  is  sometimes  very  difficult  to  determine  to  which  class  a  given  party 
belongs.     Where  it  is  known  that  the  party  is  a  proper  one,  and  the 
doubt  is  as  to  his  being  a  necessary  party,  the  safer  practice  is  to  join 
him  as  a  defendant.     A  party  may  be  regarded  as  a  necessary  party 
"  when  a  complete  determination  of  the  controversy  can  not  be  had 
without  his  presence." ' 

But  this  must  be  understood  to  mean  the  controversy  between  the 
plaintiff  and  defendants.  The  plaintiff  is  not  bound  to  join  a  defend- 
ant for  the  purpose  of  settling  a  controversy  between  him  and  another 
defendant  about  the  same  subject-matter,  where  he  neither  has  nor 
claims  an  interest  adverse  to  the  plaintiff.  He  would  not  even  be  a 
proper  party.J 

Persons  who  are  necessary  parties  plaintiff,  but  refuse  to  join  as  such, 
are  necessary  defendants. k 

119.  Who  are  proper  defendants. — Parties  who  have  or  claim 
an  interest  in  the  controversy  adverse  to  the  plaintiff,  but  whose  pres- 
ence is  not  necessary  to  a  complete  determination  of  the  controversy, 
as  between  the  plaintiff  and  defendant,  and  against  whom  no  affirma- 

(i)  R.  S.  1881,  §272;  Luark  r.  Ma-  (j)  Frear  v.  Bryan,  12  Ind.  3-18 ; 
lone,  34  Ind.  444;  Merritt  t\  Wells,  18  Conklin  v.  Bowman,  11  Ind.  254; 
Ind.  171;  Scoby  r.  Finton,  39  Ind.  275;  Scoby  v.  Finton,  39  Ind.  275,  280; 
Biltinecr  „.  Bell,  65  Ind.  445,  452.  Eesher  v.  Gilpin,  21)  Ind.  08. 

(k)  R.  S.  1881,  §269 


V.]  JOINDER   OF    PARTIES.  75 

tive  relief  is  asked  or  can  be  granted  under  the  complaint  are  proper 
parties.1 

120.  In  actions  on  joint  contracts. — In  actions  on  joint  con- 
tracts, all  of  the  joint  promisors  or  obligors  must  be  made  defendants."1 
At  common  law  the  rule  was  carried  to  the  extent  that  the  plaintiff 
must  prove  on  the  trial  a  joint  cause  of  action  against  all  who  were 
made  defendants  where  they  were  charged  as  joiut  contractors.     If  he 
showed  a  cause  of  action  against  one  or  more,  but  not  all,  he  could  not 
recover  against  any.     He  was  compelled  to  resort  to  another  action. 
In  this  respect  the  common  law  is  changed  by  our  statute. 

121.  Several  judgments  may  be  recovered  against  parties 
jointly  sued. — "Sec.  570.    Though  all  the  defendants   have  been 
summoned,  judgment  may  be  rendered  against  any  of  them  severally 
when  the  plaintiff  would  be  entitled  to  judgments  against  such  defend- 
ants if  the  action  had  been  against  them  severally.""     The  section 
quoted  only  authorizes  the  plaintiff  to  recover  a  judgment  severally 
Avhere  the  plaintiff  would  be  entitled  to  a  judgment  against  the  de- 
fendant if  sued  alone.     This  does  not,  in  terms,  authorize  a  plaintiff 
to  recover  a  judgment  against  one  of  the  contractors  on  a  joint  con- 
tract.    It  is  only  where  he  is  entitled  to  a  several  judgment  against 
the  party,  and  might  have  sued  him  alone. 

We  have,  however,  this  further  statutory  provision:  "Judgment 
may  be  given  for  or  against  one  or  more  of  several  plaintiffs,  and  for 
or  against  one  or  more  of  several  defendants ;  and  it  may,  when  the 
justice  of  the  case  requires  it,  determine  the  ultimate  rights  of  the 
parties  on  each  side  as  between  themselves."  °  This  section  would  seem 
to  authorize  judgments  against  any  defendant,  where  a  right  to  such 
judgment  is  established,  whether  his  liability  is  shown  to  be  several  or 
joint. 

In  some  of  the  cases  decided  by  our  supreme  court  this  statute  has 
been  applied  to  all  contracts  indiscriminately,  whether  all  of  those  jointly 
liable  are  joined  as  defendants  or  not.  This  is  treating  the  statute  as 

(1)  Mack   v.   Grover,    12   Ind.  254;  The  State   v.  Griswold,  40   Ind.  451; 

Wright  v.  Field,  7  Ind.  376.  Durham  v.  Bischoff,  47  Ind.  211. 

(m)  Bledsoe  v.  Irvin,  35  Ind.  293;  (n)  R.   S.   1881,   £  570;    Draper   v. 

"ragg  v.  Wetzell,  5  Blkf.  95;   Dillon??.  Vanhorn,    12   Ind.   352;    Douglass  v. 

lie  State,  6  Blkf.  5;    Wilson  v.  The  Howland,  11  Ind.  554;    Lockwood  v. 

State,  6  Blkf.  212;  Rose  v.  Comstock,  Joab,  27  Ind.  423;  Carmen  v.  Whita- 

17   Ind.  1;   Stockton   v.  Stockton,   40  ker,  36  Ind.  509 ;  Hubbell  v.  Woolf,  16 

Ind.  225 ;  Erwin  v.  Scottin,  40  Ind.  389 ;  Ind.  204. 

(o)  R.  S.  1881,§568. 


76  JOINDER   OF   PARTIES.  [CHAP. 

one  converting  joint  contracts  into  those  which  are  joint  and  several, 
so  far  as  the  plaintiff's  right  to  judgment  is  concerned,  but  it  has  been 
held  in  later  cases  to  have  no  application  to  actions  on  joint  contracts. 

The  following  statute  bears  directly  upon  this  question:  "  Where 
the  action  is  against  two  or  more  defendants,  and  the  summons  is 
served  on  one  or  more  but  not  all  of  them,  the  plaintiff  may  proceed 
as  follows :  First.  If  the  action  be  against  defendants  jointly  indebted 
on  contract,  he  may  proceed  against  the  defendants  served,  and  if  he 
recover  judgment  it  may  be  enforced  against  the  joint  property  of  all 
and  the  separate  property  of  the  defendants  served.  Second.  If  the 
action  be  against  defendants  severally  liable,  he  may  proceed  against 
the  defendants  served  in  the  same  manner  as  if  they  were  the  only  de- 
fendants, and  may  afterward  proceed  against  those  not  served.  Third. 
If  all  of  the  defendants  have  been  served,  judgment  may  be  taken 
against  any  or  either  of  them  severally,  when  the  plaintiff  would  be 
entitled  to  judgment  against  such  defendant  or  defendants  if  the  ac- 
tion had  been  against  them  or  any  of  them  alone."  p 

This  section,  it  will  be  noticed,  applies  to  cases  where  the  complaint 
is  against  all  of  the  parties  who  should  necessarily  be  joined,  but  the 
plaintiff  has  been  unable  to  get  service  upon  a  part  of  the  defendants. 
If  section  320  was  intended  to  give  the  plaintiff  the  right  to  take  judg- 
ment against  defendants,  against  whom  he  establishes  a  cause  of  action, 
whether  the  cause  of  action  is  joint  or  several,  there  would  be  very 
little  use  of  the  section  last  quoted.  The  plaintiff  could  take  his  judg- 
ment against  such  persons  as  were  shown  to  be  liable,  whether  the  others 
were  before  the  court  or  not.  The  first  subdivision  authorizes  the 
plaintiff  to  take  judgment  against  a  defendant  in  an  action  on  a  joint 
contract,  and  provides  that  the  judgment  may  be  enforced  against  the 
joint  property  of  all  the  defendants  and  the  separate  property  of  the 
defendants  served.  The  second  sub-.iivision  authorizes  the  plaintiff  to 
proceed  as  if  the  defendants  served  were  the  only  defendants  in  the 
action,  where  the  cause  of  action  is  several.  These  two  subdivisions 
show  a  clear  intention  to  maintain  the  distinction  between  joint  and 
several  contracts.  In  actions  on  joint  obligations  there  can  be  but  one 
judgment,  notwithstanding  the  provisions  of  the  statute,  which  seems 
to  apply  to  all  classes  of  contracts  in  authorizing  separate  judgments 
against  the  defendants  sued,  or  against  those  served  where  all  are  not 
served.  It  has  been  held  by  the  supreme  court  that  it  was  not  the  in- 
tention of  any  of  these  sections  of  the  statute  to  change  the  rule  that 
in  actions  on  joint  contracts  all  those  bound  by  the  contract  must  be 
joined  as  defendants,  and  that  the  only  effect  of  section  320  is  that  a 

(p)  R.  S.  1881,  §  320. 


V.]  JOINDER   OF  PARTIES.  77 

judgment  taken  against  a  defendant  who  is  jointly  liable  with  another, 
who  is  sued  but  not  served,  will  not  discharge  the  latter,  who  may  aft- 
erwards be  brought  before  the  court  by  summons,  and  a  judgment  re- 
covered against  them  at  a  future  time.q 

Section  322  of  the  code  provides  that,  "  When  there  is  a  return  of 
'  not  found'  as  to  any  of  the  defendants,  such  return  shall  be  suggested 
on  the  record,  and  the  plaintiff  may  continue  the  cause  as  to  them  for 
another  summons  at  his  option ;  and  he  may,  in  either  case,  proceed 
against  the  defendant  served  in  time." 

O 

This  section  applies  alone  to  cases  where  there  is  a  return  of  "  not 
found  "  as  to  a  part  of  the  defendants.  It  has  no  necessary  connection 
with  the  preceding  section,  and  is  in  no  way  limited  to  actions  on  sev- 
eral contracts.  Taken  alone,  it  applies  to  all  classes  of  actions.  But, 
to  give  it  this  broad  construction,  would  make  it  conflict  with  section 
320,  which  keeps  up  the  distinction  between  actions  on  joint  and  several 
contracts.  In  the  case  of  Erwin  v.  Scotten,  the  judges  of  the  supreme 
court  were  not  unanimous  as  to  the  construction  that  should  be  given 
to  section  320  (41  of  old  code),  but  the  majority  of  the  court  held  that 
it  had  no  application  to  actions  on  joint  contracts.  It  may  be  regarded, 
therefore,  as  the  settled  law  of  this  state  that  but  one  judgment  can 
be  taken  on  a  joint  obligation,  and  a  judgment  against  one  joint  con- 
tractor is  a  discharge  of  the  others,  except  that  under  sections  320  and 
321  a  judgment  may  be  taken  against  the  defendant  served,  and  the 
defendants  not  served  may  afterward  be  brought  in  and  judgment 
taken  against  them ;  but  their  liability  must  still  be  regarded  as  joint, 
and  the  payment  of  one  judgment  will  satisfy  the  other.  When  it  is  said 
that  a  judgment  taken  against  one  of  the  joint  contractors  will  dis- 
charge the  others,  it  must  not  be  understood  that  the  plaintiff  has  the 
right  to  take  such  a  judgment  when  the  proper  defense  is  made.  The 
party  sued  may  waive  any  objection  to  such  judgment  being  taken  by 
failing  to  make  the  proper  defense ;  but,  when  he  makes  the  defense 
that  he  is  sued  alone  on  a  joint  contract,  the  defense  will  be  successful. 
Where  the  party  first  sued  permits  judgment  to  go  against  him,  the 
other  party  may  plead  the  judgment  as  a  bar  to  any  further  prosecu- 
tion of  the  case  as  against  him.r 

In  the  case  of  Erwin  v.  Scotten,  in  the  dissenting  opinion  of  Downey, 
J.,  a  liberal  construction  for  section  42  of  the  code  of  1852  was  very 
forcibly  contended  for.  While  it  is  believed  that,  if  this  section  stood 
alone,  the  construction  claimed  for  it  in  the  opinion  should  be  given  it, 

(q)  Erwin  v.  Scotten,  40  Ind.  389;         (r)  Post,  §  605. 
11.  S.  1881,  §  321. 


78  JOINDER   OF   PARTIES.  [CHAP. 

it  would  be  impossible  to  reconcile  section  322,  thus  construed,  with 
the  one  immediately  preceding  it. 

The  learned  judge,  in  his  opinion,  says  : 

"  It  is  held  that  section  42  applies  only  to  cases  where  the  action  is 
upon  a  several  liability.  But  this  is,  in  my  opinion,  mere  assertion 
against  a  plain  enactment  of  the  legislature.  If  a  separate  judgment 
can  not  be  rendered  against  the  defendants  who  are  brought  in  at  a 
subsequent  term,  it  is  very  clear,  it  seems  to  me,  that  the  court  can  so 
render  the  judgment  as  to  make  these  defendants  jointly  liable  with 
those  against  whom  judgment  was  previously  rendered.  The  rule  that 
a  judgment  against  a  part  of  several  joint  debtors  merges  the  cause 
of  action  and  shields  the  others  from  any  liability  to  another  action,  is 
a  snare  in  which  unwary  creditors  are  often  caught,  and  should  at  once 
be  abrogated  by  the  legislature.  It  has  been  changed  in  several  of  the 
states,  and  the  more  sensible  and  just  rule  established,  that  all  or  any 
of  the  parties  may  be  sued,  and  judgment  recovered  against  them, 
without  affecting  the  right  of  the  creditor  to  sue  the  others  until  he  has 
got  judgments  against  all  of  them  or  secured  payment  of  the  debt. 
Section  42  was  a  step  in  the  right  direction,  but  this  decision,  if  fol- 
lowed, deprives  it  of  much  of  the  good  which  it  was  intended  to  ac- 
complish."8 

The  views,  thus  expressed  in  the  dissenting  opinion,  are  given,  not 
because  they  state  the  law  of  this  state,  but  for  the  purpose  of  calling 
attention  to  the  reasoning  by  which  the  judges  reached  their  different 
conclusions.  If  the  same  liberal  construction  could  be  given  to  the 
whole  code,  that  is  claimed  in  the  dissenting  opinion  for  this  one  sec- 
tion, it  would  be  better  calculated  to  carry  into  effect  the  legislative 
intent;  but,  while,  under  the  general  sections  of  the  code,  the  rigid 
rule  that  is  applied  to  actions  on  joint  contracts  at  common  law  is 
maintained,  there  is  no  reason  why,  as  to  this  particular  section,  the 
construction  should  have  been  different,  thereby  breaking  the  almost 
uniform  line  of  decisions  holding  that  the  statute  has  made  no  change 
in  the  common-law  requirement,  that  in  actions  on  joint  contracts  all 
the  promisors  must  be  joined  in  the  same  action,  and  but  one  judg- 
ment can  be  rendered.1 

(s)   Hunt  v.  Anderson,  4  Ind.  108;  laningham,  7  Ind.  540;  Archer  v.  Hei- 

Irwin  v.  .Scotten,  40  Ind.  389-401 ;  Pat-  man,  21  Ind.  29 ;    Maiden  v.  Webster, 

terson   v.  Norris,  29   Ind.  165;    R.  S.  30  Ind.  317;  Irwm  v.  Huldenburg,  21 

1843,  ch.  40,  §  31.  Ind.  106  ;  The  States.  Roberts,  40  Ind. 

(t)  Gibbons  v.  Surber,  4  Blkf.  155;  451;   Robertson  v.  Smith,  9  Am.  Dec. 

Morris  v.  Knight,  1  Blkf.  106;  Palmer  227  (18  Johnson,  459). 
v.  Crosby,  1  Blkf.  139 ;  Cahill  K.  Van-  ' 


V.]  JOINDER   OF   PARTIES.  79 

The  amendment  of  section  641  of  the  old  code  authorizes  a  separate 
judgment  to  be  afterwards  taken  against  parties  not  served ;  but  the 
intention  to  maintain  the  rule  as  to  the  joint  liability  of  the  parties  is 
manifest,  as  the  complaint,  to  entitle  the  party  to  the  second  judgment, 
must  allege  the  facts  authorizing  the  judgment,  and,  in  effect,  the  two 
judgments  must  be  regarded  as  but  one.u 

122.  Only  parties   liable   in   the   same   right   should   be 
joined. — The  rule  that  parties  jointly  liable  must  be  joined  as  de- 
fendants only  applies  to  parties  liable  in  the  same  right.     It  has  been 
held,  that  where  a  joint  note  has  been  assigned  by  a  joint  contract  of 
indorsement,  the  joint  makers  may  be  sued  in  one  action  and  the  in- 
dorsers  in  another,  and  the  two  need  not  be  joined.     This  is  upon  the 
ground  that  the  makers  and  indorsers,  although  liable  for  the  same 
debt,  and  to  the  same  person,  are  liable  on  a  different  contract,  and 
the  liability  is  not  the  same.v 

123.  In  actions  on  notes  and  bills. — It  is  provided  by  the 
Statute  that,  "  persons  severally  and  immediately  liable  upon  the  same 
obligation  or  instrument,  including  the  parties  to  bills  of  exchange  and 
promissory  notes,  may,  all  or  any  of  them,  be  included  in  the  same  ac- 
tion at  the  option  of  the  plaintiff."" 

This  section  simply  authorizes  the  plaintiff,  at  his  option,  to  join 
persons  severally  and  immediately  liable  upon  the  same  obligation  in  one 
action.  It  does  not  compel  the  joinder  of  such  parties.3 

The  statute  is  not  remarkable  for  its  clearness,  and  the  decisions 
under  it,  with  one  exception,  are  much  the  same.  It  is  undoubtedly 
intended  to  confer  upon  a  plaintiff  the  right  to  join  as  defendants 
parties  who  could  not  be  joined  at  common  law.  It  must  be  conceded 
that  it  does  not  authorize  him  to  sue  a  part  of  those  liable  on  a  joint 
contract.  It  is  expressly  confined  to  persons  severally  liable.  It  author- 
izes the  joinder  of  such  parties  only  when  they  are  "  immediately  liable 
on  the  same  obligation."  It  has  not  the  effect,  then,  to  authorize 
persons  severally  liable  to  be  sued  in  all  cases.  At  common  law,  where 
the  contract  was  joint  and  several,  the  plaintiff  must  elect,  when  he 
brought  his  suit,  whether  he  would  treat  the  contract  sued  upon  as 
several  or  joint.  If  joint,  then  all  the  parties  to  it  must  be  joined  as 
defendants.  If  several,  only  one  could  be  sued.  There  was  no  such 
thing  as  suing  a  part,  but  more  than  one.  And  this  election  was  held 

(u)  R.  S.  1881,  g  321.  (x)  Hall  v.  Suitt,  39  Ind.  316;  State 

(v)  Archer  v.  Heiman,  21  Ind.  29.        r.  Roberts,  40  Ind.  451;  Norvell  r.  Hit- 
(w)   R.  S.  1881,  §  270.  tie,  23  Ind.  346. 


80  JOINDER   OF   PARTIES.  [CHAP. 

binding  upon  the  plaintiff  to  the  end.  If  he  failed  to  prove  a  joint  lia- 
bility when  he  had  elected  to  treat  the  contract  as  such,  he  must  fail  iii 
the  action,  and  the  same  result  followed  where  he  elected  to  treat  the 
contract  as  several,  and  it  turned  out  upon  the  trial  to  be  joint.7 

I  have  already  shown  that  the  law  has  been  changed  in  this  respect 
by  the  code.2  The  plaintiff  may  treat  the  contract  as  joint  in  his  com- 
plaint, but  if  upon  the  trial  it  is  shown  to  be  several,  he  is  entitled  to 
judgment  against  those  shown  to  be  severally  liable.  The  reverse  of 
this  is  not  true.  The  construction  given  the  different  sections  of  the 
code  does  not  authorize  the  plaintiff  to  recover  where  he  has,  in  his 
complaint,  treated  the  contract  as  several  and  it  turns  out  to  be  joint. 

The  manifest  reason  for  this  is,  that  the  parties  against  whom  judg- 
ment should  be  rendered,  are  riot  all  before  the  court.  In  the  other  case, 
where  the  contract  proves  to  be  several,  all  of  the  parties  are  before  the 
court.  The  defendants  liable  are  not  injured  by  the  misjoinder  of  the 
other  defendants,  and  the  joinder  of  their  names  may  be  considered 
mere  surplusage. 

124.  Executor  or  administrator  of  joint  contractor  can 
not  be  joined  with  survivor. — The  question  has  been  considered 
by  the  supreme  court  whether  the  administrator  <-r  executor  of  a  joint 
contractor  may  be  joined  with  the  survivor  in  an  action  on  the  contract. 
This  could  not  be  done  at  common  law.  The  surviving  joint  con- 
tractor was  alone  liable  and  must  be  sued  alone.  Not  only  did  the  rule 
prevent  the  personal  representative  from  being  joined,  but  the  death 
of  the  party  released  his  estate  from  all  liability  on  the  contract,  at 
law,  though  the  estate  might  be  held  liable  in  equity.8 

It  was  held  under  the  code  of  1852,  that  the  personal  representative 
of  a  deceased  joint  contractor  might  be  joined  in  the  same  action  with 
the  survivor  in  an  action  on  the  contract.15 

This  was  not  claimed  to  have  beeu  effected  by  section  270  of  the 
code,  but  by  section  268.  The  question  has  been  considered,  however, 
whether  the  former  section  authorizes  the  joinder  of  the  personal  rep- 
resentative of  a  deceased  contractor  in  the  same  action  with  the  sur- 
vivor, where  the  contract  is  several  or  joint  and  several.  In  the  case 
of  Braxton  v.  The  State  the  contract  was  not  joint,  but  the  court,  fol- 
lowing the  old  rule  in  case  of  joint  and  several  contracts,  held  that,  as 
the  contract  was  joint  and  several,  and  the  plaintiff  had  elected  to  treat 

(y)  Braxton  ».  The  State,  25  Ind.  82.  v.  Halstead,    16   Ind.  287;    Weyer   v. 

(z)  Ante,  §121.  Thornburg,  15  Ind.  124;    Kimball  v. 

(a)  Braxton  v.  The  State,  25  Ind.  82  ;  Whitney,  15  Ind.  280. 
Brown  v.  Benight,  3  Blkf.  39;  Deval         (b)   Braxton  v.  The  State,  25  Ind.  82. 


V.]  JOINDER   OF   PARTIES.  81 

it  as  joint,  it  must  be  so  considered,  and  the  action  was  properly  brought 
against  the  survivors  and  the  executors  of  the  deceased  contractor. 

So  far  as  the  case  holds  that  an  executor's  bond  might  be  treated  as 
the  joint  bond  of  both  of  the  executors  and  that  of  the  sureties  of  both 
jointly,  it  has  been  expressly  overruled  by  a  later  case.0 

This  latter  suit  was  brought  on  the  relation  of  an  administratrix 
against  her  co-administrator  and  the  sureties  upon  a  bond  which  was 
given  by  the  relatrix  and  the  defendants.  It  was  insisted  that,  as  the 
relatrix  was  herself  a  principal  in  the  bond  with  her  co-administrator, 
and  the  other  defendants  were  the  sureties  of  both,  she  could  not  main- 
tain the  action.  And,  further,  that  she  was  a  necessary  party  defend- 
ant. It  was  held  that,  under  the  statute  relating  to  the  settlement  of 
decedents'  estates,  each  of  the  administrators  were  required  to  give 
separate  bonds,  and  that  when  they  joined  in  the  same  bond  it  must  be 
construed- as  the  separate  bond  of  each,  and  the  sureties  must  be  re- 
garded as  the  sureties  of  each  of  the  executors  or  administrators,  just 
as  if  two  bonds  had  been  given,  one  by  each,  with  the  same  sureties. 
And,  therefore,  the  defendants  were  properly  joined,  and  the  relatrix 
was  the  proper  party. 

The  right  to  join  an  administrator  or  executor  of  one  contractor  with 
the  survivor,  where  the  action  is  on  a  several  contract,  has  been  recog- 
nized in  this  state.d  And,  in  a  proper  case,  where  they  would  be  liable 
to  an  action,  the  heirs  of  a  surety  on  the  bond  of  a  guardian,  executor 
or  administrator,  might  be  joined  in  an  action  on  the  bond.6  This 
question  has  been  set  at  rest  by  the  code  of  1881,  which  provides  : 

"  Sec.  624.  When  two  or  more  persons  shall  be  jointly  liable  on  a 
contract  or  judgment,  and  either  of  them  shall  die,  his  estate,  execu- 
tors and  administrators,  shall  be  liable  for  the  failure  to  perform  the 
contract  and  for  the  payment  of  the  judgment  to  the  same  extent  and 
in  the  same  manner  as  if  such  contract  or  judgment  were  joint  and 
several." f 

It  was  held,  prior  to  this  statute,  that  the  estate  of  a  surety  was  not 
discharged  from  liability  by  his  death,  as  at  common  law,  and  that  his 
estate  was  liable  the  same  as  if  the  contract  was  joint  and  several. 
This  was  placed  upon  the  ground  that  the  statute  of  1838,  which  was 
similar  to  section  624  of  the  present  code,  was  still  in  force.3 

While  the  code  provides  that,  upon  the  death  of  a  party  jointly  in- 

(c)  The  State  v.  Wyant,  67  Ind.  25.         (e)  Voris  v.  The  State,  47  Ind.  34-3. 

(d)  Owen  v.  The  State,  25  Ind.  107;         (f )  R.  S.  1881,  §  624. 

Beacher  v.  The  State.  63  Ind.  302;  (g)  Hudelson  v.  Armstrong,  70  Ind. 
Eaton  v.  Burns,  31  Ind.  390.  99. 

6 


82  JOINDER    OF   PARTIES.  [CHAP. 

debted,  his  estate,  executors  and  administrators,  shall  be  liable  as  if  the 
contract  were  joint  and  several,  the  decedents'  act  provides  expressly 
that  the  administrator  can  not  be  proceeded  against  by  complaint. 
The  only  remedy  against  the  estate  is  by  filing  a  claim. h  And  the  su- 
preme court  has  held  that  no  other  party  can  be  joined  as  defendant 
with  an  administrator  or  executor  where  the  cause  of  action  is  filed  as 
a  claim  against  the  estate.'  Therefore  there  can  be  no  joinder  of  an 
executor  or  administrator  with  the  surviving  joint  contractor. 

125.  Official    bonds,    and   bonds   of   executors,    adminis- 
trators, and  guardians,  may  be  treated  as  joint  or  several. 
— Official  bonds,  or  bonds  of  executors,  guardians,  or  administrators, 
may  be  treated  either  as  joint  or  several,  but  where  the  suit  is  brought 
as  upon  a  joint  contract  the  plaintiff  is  not  bound  by  the  election  to 
treat  the  obligation  as  joint.     He   may,  at  the  time  of  the  rendition 
of  judgment,  demand  such  judgment  as  the  evidence  warrants,  whether 
it  be  joint,  as  alleged  in  his  complaint,  or  several.     He  may,  there- 
fore, recover  judgment  against  one  of  the  defendants  at  one  term  and 
continue  as  to  the  others,  and  take  judgment  as  to  them  at  a  later 
term.     And,  as  they  are  all  severally  and  immediately  liable,  he  may 
sue  one  or  more  or  all  of  them  at  his  option.     This  may  be  done  un- 
der section   270,  whether   the  action   is  joint  or  joint  and  several. 
If  it  is  joint  and  several  he  may  treat  it  as  several  and  sue  a  part. 
When  the  plaintiff  sees  proper  to  treat  the  contract  as  several,  it  be- 
comes such  for  all  the  purposes  of  that  case,  and  is  governed  by  the 
same  rules  as  if  it  had  been  made  so  by  the  express  terms  of  the  con- 
tractJ 

126.  All  or  any  of  the   parties    severally,  or  jointly  and 
severally  liable,  may  be  sued,  at  the  plaintiff's  option. — In 
the  case  of  the  State  v.  Roberts,  the  court  say :  "  The  rule  of  law  that 
a  judgment  against  one  or  more  joint  debtors  is  a  bar  to  a  subsequent 
action  against  the  others,  is  well  settled,  and  has  been  repeatedly  ap- 
plied by  this  court.     It  proceeds  upon  the  ground  that  there  can  be 
but  one  judgment  on  such  a  cause  of  action,  unless  otherwise  provided 
by  statute,  and  that  the  judgment  against  a  part  of  the  joint  debtors 
merges  the  cause  of  action.     This  rule  relates  exclusively  to  joint  con- 
tracts or  contracts  where  the  parties  are  jointly  liable.     When   the 
contract  is  both  joint  and  several,  different  rules  apply.     In  such  cases, 

(h)  ft.  S.  1881,  $2311,  2312.  (j)  The  State  v.  "Roberts.   40   Ind. 

(i)  Niblack  w.Goodman,  67  Ind.  174.     451;      Porneroy's     Remedies,     \    408;. 

Maiden  v.  Webster,  30  Ind.  317. 


V.]  JOINDER   OF   PARTIES.  83 

the  rule  of  common  law,  and  in  this  state  prior  to  the  code,  was,  that 
the  party  suing  on  such  a  contract  must  treat  it  as  several,  and  sue  the 
parties  liable  thereon  severally,  or  treat  it  as  joint,  and  sue  them  all ; 
but  he  could  not  sue  an  intermediate  number.  No  change  has  been 
made  in  this  respect  where  the  contract  is  joint  only,  but  as  to  con- 
tracts which  are  several,  or  joint  and  several,  an  important  change  has 
been  made  by  the  code.  It  is  provided  by  section  20,  2  G.  &  H.  50, 
that,  '  persons  severally  and  immediately  liable  on  the  same  obligation  or 
instrument,  including  parties  to  bills  of  exchange  and  promissory 
notes,  may  all  or  any  of  them  be  included  in  the  same  action,  at  the 
option  of  the  plaintiff.'  The  instrument  sued  upon  in  this  case  is 
clearly  within  the  terms  of  this  section,  and  the  persons  liable  thereon 
are  severally  and  immediately  liable.  It  is  true  that  they  are  jointly 
liable,  but  they  are  also  severally  liable.  If  there  had  been  no  joint 
liability,  the  parties  to  it,  under  this  section,  might  very  clearly  all 
have  been  sued  upon  it  in  the  same  action.  That  there  is  a  joint  lia- 
bility, as  well  as  a  several,  can  make  no  difference." 

The  court,  after  considering  authorities  from  other  states  under  the 
same  and  similar  statutory  provisions,  continues : 

"Applying  the  statutes  and  authorities  in  question,,  we  come  to 
these  conclusions  in  the  case  under  consideration  :  first,  that  the  plaint- 
iff had  the  right  to  sue  all  of  the  defendants  upon  the  obligation  or  in- 
strument in  question,  whether  it  is  viewed  as  a  joint,  or  as  a  several 
obligation ;  second,  that  the  bringing  of  the  action  against  all  of  them 
does  not  show  an  election  to  treat  the  cause  of  action  as  joint  or  as  sev- 
eral ;  third,  that,  in  such  a  case,  the  court  may,  if  the  plaintiff  elect 
at  the  time  of  the  rendition  of  judgment  to  treat  the  instrument  as 
several,  render  separate  judgments  against  the  defendants  liable,  or, 
if  the  plaintiff,  on  the  contrary,  then  elect  to  treat  it  as  .joint,  and  the 
defendants  are  shown  to  be  jointly  liable,  render  a  joint  judgment 
against  all  ^f  them ;  fourth,  that,  in  either  case,  the  plaintiff  can  have 
but  one  satisfaction ;  fifth,  that  the  rendition  of  the  judgment  in  this 
case  against  the  principal  alone  did  not  merge  the  several  liabilities  of 
the  securities."8 

Mr.  Estee,  in  his  work  on  pleading  and  forms,  says  :  "  In  New  York, 
it  seems  the  plaintiff  may  sue  one  or  all  of  the  obligors  of  a  joint  and 

(s)  The  State  v.  Roberts,  40  Ind.  451,  Barb.  33 ;  The  People  t\  Love,  25  Cal. 

citing  Burgoyne  v.  Ohio  Life  Ins.  Co.,  520;  1  Estee's  Pleadings  and  .Forms, 

5  Ohio  St.  586;  Morehouse  i\  Ballon,  116,  117,  118. 
16  Barb.  289;    Parker  v.  Jackson,  16 


84  JOIXDER    OF   PARTIES.  [CHAP. 

several  bond ;  but,  in  strictness  of  law,  he  can  not  sue  an  intermediate 
number."  * 

"  The  practice  is,  however,  different  in  California,  where  one  or  all,  or 
any  intermediate  number  may  be  made  defendants  at  the  option  of  the 
plaintiff."  u  It  will  be  noticed  that  by  the  case  of  The  State  v.  Roberts, 
cited  above,  the  California  practice  has  been  adopted  in  Indiana.  The 
section  of  the  statute,  that  is  the  same  in  this  and  other  states,  very 
clearly  authorizes  the  plaintiff  to  sue  any  number  of  the  parties  to  the 
contract  that  he  may  see  proper. 

It  is  not  necessary  that  the  parties  to  the  contract  should  be  bound 
in  the  same  amount,  or  that  the  recovery  against  each  should  be  the 
same.  They  may  be  joined  where  the  judgment  to  be  recovered  against 
each  is  for  a  different  amount.  In  such  case  a  separate  judgment  should 
be  rendered  against  each  defendant,  as  required  by  the  evidence.  The 
requirement  of  the  statute  is  that  they  shall  be  liable  on  the  same  in- 
strument, not  that  their  liability  shall  be  the  same,  but  only  that  they 
be  immediately  liable  to  the  plaintiff/ 

127.  Principal  and  surety  may  be  joined,  but  principal 
and  guarantor  can  not. —  The  statute  very  clearly  applies  to 
persons  liable  on  a  contract  as  principal  and  surety,  but  whether  it  ap- 
plies to  guarantors  is  not  so  clear.  The  contract  of  the  surety  is  that 
of  the  principal,  but  in  this  state  the  contract  of  the  guarantor  is  held 
to  be  a  separate  and  distinct  contract. w  And  while  it  is  true  that  the 
liability  of  the  guarantor  is  measured  by  that  of  his  principal,  he  is 
not  usually  bound  "  immediately  by  the  same  instrument."  If  his 
guaranty  is  a  part  of  the  same  instrument  that  binds  the  principal, 
there  is  no  good  reason  why  the  statute  should  not  be  held  to  authorize 
his  joinder  in  an  action  on  the  contract.  But  if  his  guaranty  is  in  fact 
a  separate  contract  contained  in  a  separate  instrument,  the  case  is  not 
within  the  terms  of  the  statute.  It  has  been  held  in  Indiana  that  the 
original  contractor  and  the  guarantor  are  not  properly  joined  in  the 
same  action.1 

(t)  Citing  Leroy  v.  Shaw,  2  Duer,  400;  People  v.  Love,  25  Cal.  520 ;  East- 

626;   Minor  v.  Mechanics'   Bk.  of  Al-  man  v.  Turinan,  24  Cal.  379. 

exandria,   1  Pet.  S.  Ct.  46;    Annis  v.  (v)  Pomeroy's  Kemedies.  %  406, 407. 

Smith,  16  Id.  303;  Brainard  v.  Jones,  (w)  McMillan  v.  The   Bull's  Head 

11  How.  Pr.  569;  Loomis  v.  Brown,  16  Bank,  32  Ind.  11. 

Barb.  325;  Phalen  v.  Dingee,  4  E.  D.  (x)  Virden   v.    Ellsworth,    15    Ind. 

Smith,  379;  Allen  v.  Fosgate,  11  How.  144;  Smith  r.  Bainbridge,  6  Blkf.  12; 

Pr.  218.  Gaff  r.  Sims,  45  Ind.  265;   Richwine  v. 

(u)  Citing  Lewis  v.  Clarkin,  18  Cal.  Scoville,  54  Ind.  150;  Coler.  The  Mer- 
chants' Bank,  60  Ind.  350. 


V.]  JOINDER   OF   PARTIEg.  85 

Mr.  Pomeroy,  in  his  work  on  Remedies  and  Remedial  Rights,  lays 
down  the  rule  that  "a  surety  or  guarantor  may  be  joined  as  a  co- 
defendant  with  his  principal,  if  the  contract  be  in  such  a  form  and  of 
such  a  nature  that  his  liability  arises  from  the  same  instrument." y 
It  is  admitted,  however,  by  the  learned  author,  that  the  weight  of  au- 
thority is  against  the  right  to  join  the  guarantor  and  his  principal. 
The  fact  that  the  original  promise  and  the  guaranty  are  written  on  the 
same  piece  of  paper,  does  not  make  them  one  instrument.  One  of  the 
tests  by  which  to  determine  whether  a  party  is  a  surety  or  a  guarantor, 
is  the  question  whether  his  promise  is  collateral  to  or  the  same  as  that 
of  the  principal.  If  his  promise  is  collateral,  this  is  one  evidence  of 
his  being  a  guarantor,  and  being  collateral,  he  can  not  be  regarded  as 
being  bound  by  the  same  obligation  or  instrument. 

"  There  are  important  differences  between  the  contract  of  suretyship 
and  that  of  guaranty.  A  surety  is  bound,  with  his  principal,  as  an 
original  promisor,  and  is  a  debtor  from  the  beginning.  The  contract 
of  a  guarantor,  on  the  other  hand,  is  his  own  separate  contract.  It  is  in 
the  nature  of  a  warranty,  by  him,  that  the  thing  guaranteed  to  be  done 
by  the  principal  shall  be  done,  and  not  merely  an  engagement,  jointly 
with  the  principal,  to  do  the  thing."2 

The  case  of  Carman  v.  Plass,  cited  by  Mr.  Pomeroy,  was  an  action 
on  a  lease  for  rent;  and  the  party  charged  as  a  guarantor  had,  in  the 
lease  sued  upon,  guaranteed  the  payment  of  the  rent.  It  was  held 
that  as  the  parties  were  both  bound  by  the  same  instrument  they  were 
properly  joined,  and  the  fact  that  their  liabilities  were  not  precisely 
the  same  could  make  no  difference.  But  the  contrary  doctrine  is  laid 
down  as  the  law  in  this  state  in  a  case  in  legal  effect  the  same,  the  only 
difference  being  that  the  guaranty  is  indorsed  on  the  lease.  But  it  was 
alleged  that  the  lease  and  indorsement  were  executed  at  the  same  time 
and  upon  the  same  consideration.  The  court  say :  "  We  are  of  opinion 
that  the  parties  were  improperly  joined.  The  undertaking  or  contract 
of  the  guarantor  was  distinct  from  that  of  the  principal  and  collateral 
thereto ;  and  his  liability  depended  upon  a  contingency  :  namely,  the 
non-payment  of  rent  by  the  lessee." a 

128.  "When  indorser  may  be  joined  with  maker  of  prom- 
issory note  or  drawer  of  bill  of  exchange. — The  contract  of  an 

(y)  Pomeroy's  Kemedies,  £  410>  citing  Ind.  11;  Drake  v.  Markle,  21  Ind. 

Carman  v.  Plass.  23  N.  Y.  286,  287.  433. 

(z)  Gaff  v.  Sims,  45  Ind.  262,  264;  (a)  Virden  v.  Ellsworth,  15  Ind.  144, 

Virden  v.  Ellsworth,  15  Ind.  144;  Me-  citing  Nelson  v.  Boynton,  3  Met.  396; 

Millan  v.  The  Bull's  Head  Bank,  32  Skelton  v.  Brewster,  8  Johns.  f,78. 


86  JOINDER    OF   PARTIES.  [CHAP. 

indorser  of  a  promissory  note  or  bill  of  exchange,  like  that  of  a  guar- 
antor, is  distinct  from  that  of  the  maker  or  drawer.  They  are  only 
conditionally  liable,  depending  upon  whether  the  maker  or  drawer  does 
or  does  not  pay  the  debt.  Applying  the  rule  laid  down  in  case  of 
guarantors,  the  maker  of  a  note,  or  the  drawer  of  a  bill  of  exchange, 
and  the  indorsers  could  not  be  joined  in  the  same  action.  They  are  not 
bound  by  the  same  instrument  nor  is  their  liability  the  same. 

But  we  have  a  statute  in  this  state  that  expressly  provides  that  the 
"  holder  of  any  note  or  bill  of  exchange,  negotiable  by  the  law  merchant 
or  by  the  law  of  this  state,  may  institute  one  suit  against  the  whole  or 
any  number  of  the  parties  liable  to  such  holder."0  This  statute  ap- 
plies to  "  notes  or  bills  of  exchange  negotiable  by  the  law  merchant  or 
by  the  law  of  this  state." 

Promissory  notes,  governed  by  the  law  merchant,  are  such  as  are 
made  "payable  to  order  or  bearer  in  a  bank  in  this  state." d  As  to 
such  notes  and  bills  of  exchange,  it  is  well  established  that  fhe  makers 
or  drawers  and  the  indorsers  may  be  joined  in  the  same  action  or  not, 
at  the  option  of  the  holder.6 

129.  On  promissory  notes  negotiable  by  the  law  of 
this  state. — Promissory  notes,  negotiable  "  by  the  law  of  this  state"  are 
defined  by  the  following  section  of  the  statute : 

"SEC.  5501.  All  promissory  notes,  bills  of  exchange,  bonds,  or 
other  instruments  in  writing,  signed  by  any  person  who  promises  to 
pay  money,  or  acknowledges  money  to  be  due,  or  for  the  delivery 
of  a  specific  article,  or  to  convey  property,  or  perform  any  stipulation 
therein  mentioned,  shall  be  negotiable  by  indorsement  thereon,  so  as  to 
vest  the  property  thereof  in  each  indorsee  successively." f 

Section  5516  of  the  act  quoted  from  above,  authorizes  the  holder  of 
a  promissory  note,  made  negotiable  by  this  statute,  to  sue  the  makers 
and  indorsers  in  the  same  action,  or  any  of  them  alone,  just  as  clearly 
as  it  does  the  holder  of  a  note  "negotiable  by  the  lawr  merchant." 

There  is,  however,  another  section  of  the  same  act  that  is  in  conflict 
with  this  section  so  far  as  it  applies  to  notes  negotiable  by  the  law  of 

(c)  R.  S.  1881,  §  5516.  gomery,  19  Ind.  110 ;  Hunt  v.  Standart, 

(d)  K.S.  1881,  §  5506;  Porter  v.  Hoi-     15  Ind.  33;   Roach  v.  Hill,  54  Ind.  245. 
loway,  43  Ind.  35;  Parkinsons.  Finch,     Walker  v.  Woolen,  54  Ind.  164. 

45  Ind.  122;  Mix  v.  The  State  Bank,  (e)  Hall  v.  Suitt,  39  Ind.  316;  Mar- 

13  Ind.  521 ;  Stoneman  v.  Pyle,  35  Ind.  shall  v.  Pyeatt,  13  Ind.  255;  Reiser  v. 

103;  Hereth  v.  Merchants'  Nat.  Bank,  Yandes,  45  Ind.  174. 

etc.,  34  Ind.  380;   Mussulman  v.  McEl-  (f )  E.  S.  1881,  \  5501. 

henny,  23  Ind.  4;    Gordon  v.   Mont-  , 


V.]  JOINDER   OF   PARTIES.  87 

this  state.  "Any  such  assignee,  Jiaving  used  due  diligence  in  the  premises, 
shall  have  his  action  against  his  immediate  or  any  remote  indorser."  " 

This  section  withholds  the  right  of  the  holder  to  sue  until  he  has 
used  due  diligence  in  the  premises.  The  supreme  court  holds  that  to 
use  due  diligence  is  to  sue  the  maker. h 

It  follows  that,  in  this  class  of  cases,  the  maker  and  indorsers  can 
not  be  joined  in  the  same  action,  for  the  reason  that  the  statute  re- 
quires that  the  maker  shall  be  sued  alone  before  a  right  of  action  ac- 
crues against  the  iudorser.  It  is  not  in  all  cases,  however,  that  the 
holder  is  bound  to  sue  the  maker.  If  he  is  totally  insolvent  the  holder 
is  not  bound  to  sue  him,  but  may  sue  the  indorser  at  once.1 

The  same  rule  applies  where  the  maker  has  become  a  non-resident 
of  the  state  at  the  time  suit  should  be  brought  against  him.J 

Section  5516  clearly  authorizes  the  holder  to  sue  all  or  any  of  the 
iudorsers  of  notes  not  governed  by  the  law  merchant — as  this  right  is 
in  no  way  limited  or  affected  by  section  5504 — where  the  liability  of 
the  indorsers  has  been  fixed  by  using  due  diligence  to  collect  from  the 
maker,  or  where  sufficient  excuse  is  shown  for  a  failure  to  use  such 
diligence.11 

In  the  case  of  Couch  v.  The  First  National  Bank,  the  maker  and 
indorsers  of  a  note  not  governed  by  the  law  merchant  were  joined  in  the 
action,  but  the  action  against  the  maker  was  dismissed  in  the  court  be- 
low. It  was  held  that  they  could  not  be  joined  in  the  same  action ; 
but,  as  the  complaint  alleged  the  insolvency  of  the  maker,  the  plaint- 
iff had  the  right  to  dismiss  as  to  him  and  proceed  to  judgment  against 
the  indorsers. 

The  court  say:  "  It  would  seem  that  makers  and  indorsers  could  not 
be  joined  in  an  action,  except  in  cases  where  the  indorsers  are  liable 
without  a  suit  having  been  first  brought  against  the  makers." 

It  may  be  inferred  from  this  language  that  there  might  be  a  case 
where  a  joinder  of  the  makers  and  indorsers  would  be  proper,  but,  as 
there  was  no  such  question  before  the  court,  what  seemed  to  be  the  law 
is  of  very  little  weight.  There  is  no  authority,  in  this  state,  authoriz- 

(g)  R.  S.  1881,  ?5504.  (i)  Markle   v.  Evans,  47   Ind.  326; 

(h)   Roberts  v.  Masters,  40  Ind.  461 ;  Pennington  v.  Hamilton,  50  Ind.  397, 

Hall  v.  The  Junction  R.  R.  Co.,  15  Ind.  Kestner  ».  Spath,  53  Ind.  288. 

362;    Hunt  v.  Standart,    15   Ind.  33;  (j)  Halton   v.  McCorraick,  45  Ind. 

Pennington  v.  Hamilton,  50  Ind.  397;  411 ;  Bernitz  v.  Stratford,  22  Ind.  320. 

Markell 'v.  Evans,  47  Ind.  326;  Miller  (k)  Marshall  v.  Pyeatt,  13  Ind.  255; 

v.  Draner,  30  Ind.  371 ;   Bernitz  v.  Staf-  Couch  v.  The  First  Nat.  Bank,  etc.,  64 

ford,  2'2  Ind.  320.  Ind.  92;    Mix  v.  The  State  Bank,  13 

Ind.  521. 


88  JOINDER  OP  PARTIES.  [CHAP. 

ing  such  joinder,  while,  as  we  have  seen,  there  are  many  authorities 
the  other  way. 

130.  When  individual  members  may  be  sued  for  debts  of 
corporation. — The  individual  members  of  a  corporation  are  some- 
times made  liable  for  its  debts,  and  may  be  sued  therefor.1 

Thus,  under  a  statute  of  this  state  providing  for  the  incorporation 
of  ditching  associations,  it  was  provided  that  all  the  members  of  such 
companies  should  be  "  individually  liable  for  all  the  debts  contracted 
by  the  company,  or  the  damages  assessed  against  any  company  of 
which  he  may  at  the  time  be  a  member."™ 

It  was  held  that  this  statute  made  the  individual  members 
primarily  liable  for  the  debts  of  the  company,  for  which  they  might  be 
sued  without  having  first  sued  the  corporation."  In  an  action  under 
this  statute  in  a  later  case,  the  corporation  and  its  individual  members 
were  joined  in  the  same  action.  The  members  of  the  corporation 
answered  that  the  corporation  was  the  owner  of  property,  out  of  which 
the  debt  could  be  made,  and  insisted  that  they  were  secondarily  liable. 
The  court  held,  as  in  the  former  case,  that  they  were  primarily  liable, 
and  were  properly  sued,  the  question  whether  there  were  assets  of  the 
company  being  immaterial. 

The  question  whether  the  company  and  the  individual  members  were 
properly  joined  in  the  same  action  was  not  decided.  The  judgment 
rendered,  provided  that  the  assets  of  the  company  should  be  first  ex- 
hausted, and  the  court  said  the  members  of  the  company  had  no  reason 
to  complain  of  the  joinder  of  the  company,  and  no  demurrer  was  filed 
by  the  corporation.0 

Under  a  similar  statute  it  was  again  held  that  the  individual  mem- 
bers were  primarily  liable,  that  their  liability  was  joint  and  not  several, 
and  that  all  of  the  members  must  be  joined  as  defendants.  It  was 
further  held,  that  the  members,  after  being  compelled  to  pay  the  debt, 
would  be  entitled  to  re-im burse ment  out  of  the  assessments  of  the 
company  when  collected.1" 

Where  the  individual  stockholders  are  made  liable  for  the  debts  of 
the  corporation,  to  the  extent  of  the  stock  subscribed  by  each,  their 

(1)  R.  S.  1881,  $  3586,  3869,  3934,  (p)  Shafer  v.  Moriarty,  46  Ind.  9, 

3964,  4161,  4172,  4192.  citing  3  Ind.  Stat.  227  ;  Allen  v.  Sew- 

(m)  1  G.  &  H.  305.  all,  2  Wend.  327;   Middletown  Bank 

(n)  Toddhunter  v.  Randall,  29  Ind.  v.  Magill,  5  Conn.  28;  The  Bank  of 

275.  Poughkeepsie  K.  Ibbotson,  24  Wend. 

(o)  The  Marion,  etc.,  Co.  v.  Norris,  472;  Garrison  v.  Homp,  17  N.  Y.  458; 

37  Ind.  424.  Moss  v.  Oakley,  2  Hill  (N.  Y.),  265. 

See  Shafer  v.  Cravens,  46  Ind.  171. 


V.]  JOINDER   OF  PARTIES.  89 

liability  is  several,  and  each  may  be  sued  alone.  1  But  under  our 
statute,  as  their  liability  grows  out  of  the  same  instrument,  they  might 
be  joined  as  defendants/ 

131.  In   actions   by   assignee   without   indorsement,   as- 
signor must  be  joined. — "  Sec.  276.     When  any  action  is  brought 
by  the  assignee  of  a  claim  arising  out  of  contract,  and  not  assigned  by 
indorsement  in  writing,  the  assignor  shall  be  made  a  defendant,  to 
answer  as  to  the  assignment  or  his  interest  in   the   subject  of  the 
action."8 

This  statute  is  imperative,  and  makes  the  assignor  a  necessary  defend- 
ant where  the  assignment  is  not  made  by  "  indorsement  in  uniting."* 

The  word  indorsement  means  "  a  writing  on  the  back,"  and  an  "as- 
signment in  writing"  is  not  equivalent  to  an  "  assignment  by  indorse- 
ment in  writing."  In  order  to  excuse  the  necessity  of  joining  the 
assignor  as  a  party  defendant,  the  assignment  must  be  in  writing  on  the 
back  of  the  instrument.  A  separate  written  assignment  is  not  suffi- 
cient. u 

Where  the  assignor  in  such  case  is  deceased  at  the  time  of  bringing 
the  suit,  his  personal  "representative  must  be  joined  as  a  defendant,  or 
the  complaint  must  show  that  none  has  been  appointed.7 

NECESSARY  DEFENDANTS   IN  ACTIONS   FOR  SPECIFIC   PER- 
FORMANCE  OF  CONTRACTS   TO   CONVEY   REAL   ESTATE. 

132.  By  vendee. — In  an  action  by  the  vendee  for  specific  perform- 
ance of  a  contract  to  convey  real  estate  where  the  vendor  is  dead,  his 
widow  and  heirs  should  be  made  defendants.     The  personal  represen- 
tative is  not  a  necessary  party. w    Heirs   who  have  conveyed   their 
interest  need  not  be  joined. x 

133.  By  vendor. — In  actions  by  the  vendor  to  enforce  a  specific 

(q)  Middletown    Bank  v.  Magill,  5  24;  Reed  v.  Garr,  59  Ind.  299 ;  Eeed  v. 

Conn.  28;    Perry   v.  Turner,   55    Mo.  Finton,  63  Ind.  288. 
418;  K.  S.  1881,  §  4192.  (u)   Reed  v.  Garr,  59  Ind.  299;   Reed 

(r)  R.  S.  1881,  §270;  ante,  §  123.  v.  Finton,  63  Ind.  289;    The  Marion, 

(s)  R.  S.  1881,  ?  276.  etc.,  G.  R.  Co.  v.  Kessinger,  66   Ind. 

(t)  The   Indiana,  etc.,  R.  R.  Co.  v.  549. 

McKernan,  24  Ind.  62;  Barcu-s  v.  (v)  St.  John  v.  Harwick,  11  Ind.  251. 
Evans,  14  Ind.  381;  Mevvherter  v.  (w)  Watson  v.  Mahan,  20  Ind.  223; 

Price,  11  Ind.  199;  Shane  v.  Lowry,  Barnard  v.  Macy,  11  Ind.  536;  Long 

48   Ind.   205;   Nelson    i>.  Johnson,  18  r.  Brown,  66  Ind.  160;  Sowle  v.  Hold- 

Ind.  329-333;  Strong  ».  Downing,  34  ridge,  63  Ind.  213. 
Ind.  300;  dough  v.  Thomas,  53  Ind.         (x)  Barnard  v.  Macy,  11  Ind.  536. 


90  JOINDER   OF   PARTIES.  [CHAP. 

performance  of  the  contract  and  recover  the  purchase-money,  both  the 
personal  representatives  of  the  deceased  vendee  and  his  heirs  should  be 
made  defendants.  The  deed  must  be  tendered  to  the  heirs,  but  the 
recovery  of  the  purchase-money  could  only  be  had  against  the  personal 
representative. 

134.  Where  vendor  is  dead. — The  statute  provides  that,  "  when- 
ever any  person  who  has  executed  a  title  bond  or  contract  for  the  con- 
veyance of  real  estate  to  any  person  or  corporation  shall  die  before  such 
conveyance  is  executed,  and  shall  have  made  no  legal  provision,  by 
will  or  otherwise,  for  the  execution  of  such  conveyance,  and  the  whole 
or  any  part  of  tlie  purcJiase-money  be  unpaid  at  his  death,  the  executor  or 
administrator  of  such  deceased  person  may  file  a  petition  in  the  circuit 
court  of  the  county  where  the  real  estate  or  any  part  thereof  lies,  or 
where  letters  testamentary  or  of  administration  are  granted  against  the 
obligee,  vendee,  or  assignee,  or  all  of  them,  as  may  be  necessary,  and 
also  the  heirs  and  devisees,  if  any,  of  the  deceased,  praying  in  such 
petition  for  the  appointment  of  a  commissioner  to  execute  a  convey- 
ance to  the  proper  holder  of  such  bond  or  contract. "* 

The  statute  further  provides  for  the  trial  of  the  question  presented 
by  the  petition,  and  the  appointment  of  a  commissioner  to  execute  tlie 
deed  ;  authorizes  the  executor  or  administrator  to  tender  such  deed  to 
the  holder  of  the  title  bond  or  contract  and  demand  payment  of  the 
purchase-money,  and  that,  upon  the  failure  of  the  person  liable  to  pay 
the  money,  the  administrator  or  executor  is  authorized  to  bring  suit 
therefor. y 

The  object  of  these  provisions  is  to  place  the  executor  or  adminis- 
trator in  the  proper  condition  to  sue  by  providing  the  means  by  which 
to  procure  the  execution  of  a  deed  which  may  be  tendered  to  the  vendee, 
which  must  be  done  before  suit  can  be  brought  for  the  final  payment 
of  the  purchase-money.  Two  separate  proceedings  are  necessary.  The 
first  is  to  procure  the  execution  of  the  deed  by  a  commissioner.  To 
this  action  the  heirs  of  the  vendor  are  necessary  parties  defendant,  be- 
cause the  title  to  the  real  estate  is  in  them,  and  the  vendee  or  holder 
of  the  contract  to  convey  the  real  estate  is  also  a  necessary  defendant. 

In  the  action  for  the  purchase-money,  after  tendering  the  deed,  the 
heirs  of  the  vendor  are  not  necessary  parties.  We  have  seen  that 
contracts  to  convey  real  estate  may  be  assigned,  and  if  the  assignment 
is  made  by  "  indorsement  in  writing,"  the  assignor  is  not  a  necessarv 
party  where  the  assignee  has  assumed  to  pay  tlie  purchase-money ;  but 
the  administrator  or  executor,  in  such  case,  may  make  both  the  vendee 

(x)  R.  S.  1881,  ?  2374.  (y)  R.  S.  1881,  g§  2375,  237C,.  2377. 


V.]  JOINDER   OF   PARTIES.  91 

and  his  assignee  defendants.  Where  the  contract  to  convey  has  been 
assigned  more  than  once,  the  intermediate  indorsers  are  not  neces- 
sary parties  where  the  assignments  have  all  been  by  written  indorse- 
ments.2 

Where  the  assignee  has  assumed  and  agreed  to  pay  the  purchase- 
money,  the  administrator  may  look  to  him  alone  for  payment,3  but  he 
is  not  bound  to  do  so,  and,  if  he  seeks  to  hold  the  original  vendee  lia- 
ble for  the  purchase -money,  he,  as  well  as  the  assignee,  is  a  necessary 
defendant. 

IN  FORECLOSURE  OF  MORTGAGES. 

135.  Necessary  and  proper  parties. — In  actions  to  foreclose 
mortgages,  the  difference  between  necessary  and  proper  defendants  is 
very  strongly  exemplified.     While  the  number  of  necessary  parties  is 
comparatively  small,  those  who  are  proper  parties  and  may  be  joined 
in  the  action  are  very  numerous.     The  importance  of  a  clear  under- 
standing as  to  who  are  proper  parties  in  this  class  of  cases  is  apparent, 
under  the  many  decisions  of  our  supreme  court,  holding  that,  unless 
such  persons  are  joined  in  the  action,  they  are  not  bound  by  any  judg- 
ment that  may  be  rendered,  and  their  rights  are  not  affected  by  the 
proceeding.11 

136.  Where  several  notes,  secured  by  same  mortgage, 
are  held  by  different  parties. — Where  a  mortgage  is  given  to  se- 
cure several  notes,  and  such  notes  are  held  by  different  persons,  either 
may  sue  on  the  note  held  by  him,  and  foreclose  the  mortgage,  without 
making  the  holders  of  the  other  notes  parties  to  the  action;  but,  al- 
though they  are  not  necessary,  they  are  proper  defendants,  and  may 
be  joined.     The  mortgage  is  held  to  be  several  as  to  the  parties  hold- 
ing the  notes,  and  is  construed  as  so  many  successive  mortgages,  held 
by  the  note-holders  in  the  order  in  which  their  notes  mature.     There 
is,  therefore,  no  difference  between  a  case  where  several  debts  are  se- 
cured by  the  same  mortgage  and  one  where  there  are  debts  secured  by 
different  mortgages,  so  far  as  the  question  of  parties  is  concerned.     In 
actions  to  foreclose,  all  persons  having  an  interest  in  the  real  estate, 
either  as  owners  or  lien-holders,  whether  by  virtue  of  their  being  mort- 

(z)  Ante,  §  131.  v.  Mopley,   46   Ind.  355;    Holmes  v. 

(a)  Post,  \  142,  and  cases  cited;  Ar-  Bybee,    34    Ind.    262;    McKernan    v. 
thur  v.  Franklin,  15  Ohio  St.  485,  509.  Neff,  43  Ind.  503;  Pauley  v.  Cauthorn, 

(b)  Murdook   v.  Ford,  17   Ind.  52;  101  Ind.  91;  Petry  v.  Ambrosher,  100 
Shaw  v.  Hoadley,  8  Blkf.  165;  Goodall  Ind.  510. 


92  JOINDER   OF   PARTIES.  [CHAP. 

gagees  or  otherwise,  are  proper  parties.     If  such  parties  are  owners  of 
the  real  estate,  or  any  part  of  it,  they  are  necessary  parties.0 

137.  When  wife  necessary  party  in  foreclosure  against 
husband  ;  where  wife  does  not  join  in  mortgage. — It  has 
been  held  that,  where  the  husband  purchased  real  estate,  and,  at  the 
time,  executed  a  mortgage  for  the  purchase -money,  in  which  the  wife 
did  not  join,  the  wife  was  not  a  necessary  party  defendant  in  an  action 
to  foreclose  the  mortgage  during  the  life  of  the  husband,  and  that 
the  wife  had  no  right  to  redeem  from  a  sale  made  under  the  foreclosure 
proceeding.11 

The  decision  was  rendered  by  a  divided  court,  and  the  question  was 
fully  and  ably  discussed.  The  majority  of  the  court,  in  holding  that 
she  was  not  a  necessary  party,  based  the  opinion  upon  their  construc- 
tion of  the  law  of  descents  that  the  widow,  under  the  statute,  took  as 
an  heir,  and  not  by  virtue  of  her  marital  rights;  and  that,  as  the 
statute  provided  that  "  where  a  husband  shall  purchase  lands  during 
marriage,  and  shall,  at  the  time  of  the  purchase,  mortgage  said  lands 
to  secure  the  whole  or  part  of  the  consideration  therefor,  his  widow, 
though  she  may  not  have  united  in  said  mortgage,  shall  not  be  entitled 
to  her  third  of  such  lands  as  against  the  mortgagee  or  persons  claiming 
under  him  ;  but  she  shall  be  entitled  to  the  same  as  against  all  other 
persons,"  the  wife  had  no  interest  in  the  land,  and  not  being  the  owner 
of  any  part  of  the  land,  or  any  interest  therein,  she  was  not  a  neces- 
sary party  to  the  action  to  foreclose  the  mortgage,  and  had  no  right  to 
redeem. 

After  quoting  authorities  to  the  effect  that  the  widow  takes  the  es- 
tate conferred  on  her  by  statute  as  an  heir  and  by  descent  from  her 
husband,0  the  court  say  :  "It  seems  clear,  therefore,  that  the  right  of 
the  widow  under  the  statute  to  a  third  of  the  lands  of  her  deceased 
husband  is  not  as  dowress,  but  it  vests  in  her  at  his  death  as  an  heir 
by  descent.  "f 

If  the  court  is  right  in  this  position,  it  must  follow  that  the  wife  had 
no  present  interest  in  the  land,  and  was  not,  therefore,  a  necessary 
party. 

This  question  came  again  before  the  supreme  court  in  a  later  case, 

(c)  Day  v.  Patterson,  18  Ind.  114;  Murray  v.  Mounts,  19  Ind.  364;  State 
Muir  v.  Gibson,  8  Ind.  187;  Pomeroy's  v.  Mason,  21    Ind.  171;    McMakin    v. 
Remedies,  \\  334,  336;  Jones  on  Mort-  Me  Michaels,  23  Ind.  4(52;  Rockhill  v. 
gages,  §  1394  ;  post,  §  141.  Nelson,  24  Ind.  422  ;  Easing  v.  Rusing, 

(d)  Fletcher  v.  Holmes,  32  Ind.  497.  25  Ind.  63. 

(e)  Frantz  r.  Harron,  13  Ind.  507;         (f )  Fletcher  v.  Holmes,  32  Ind.  510. 
Johnson   v.   Laybrook,    16    Ind.   473;  > 


V.]  JOINDER   OF   PARTIES.  93 

where  it  was  held  that  if  the  husband  died  seized  of  the  real  estate, 
the  wife  took  her  interest  as  heir,  by  descent,  but  if  the  real  estate  had 
been  conveyed  by  the  husband  by  deed,  in  which  the  wife  did  not  join, 
she  would  take  one-third  of  the  real  estate  by  virtue  of  her  marital 
rights,  and  not  as  heir,  and  that  in  the  former  case  she  would  be 
a  necessary  party,  but  in  the  latter  she  Avould  not.8 

In  the  very  able  opinion  delivered  in  this  case,  after  quoting  sections 
17,  27,  and  31  of  the  statute    of  descents,11  Worden,   J.,  said  : 

"  Now  the  facts  alleged  give  rise  to  two  questions :  first,  would  Mrs. 
May  have  had  the  right  to  redeem  had  there  been  no  foreclosure? 
Second,  if  so,  is  she  barred  by  the  foreclosure,  she  not  having  been  a 
party  to  the  proceedings  ?  The  solution  of  these  questions  depends 
upon  another,  viz.,  in  what  capacity  does  a  surviving  wife  take  the 
interest  conferred  upon  her  in  the  lands  of  which  her  husband  was 
seized  during  coverture,  but  of  which  he  did  not  die  seized  ?  If 
she  takes  in  such  case  by  descent,  and  simply  as  the  heir  of  her  hus- 
band, there  must  be  an  end  of  the  question,  for  a  judgment  against  the 
ancestor  binds  the  heir.  Moreover,  if  she  takes  simply  as  heir,  the 
husband  having  been  disseized  in  his  life  time,  no  estate  descended  to 
the  widow,  and  consequently  she  has  no  interest  to  redeem  from  the 
mortgage.  There  can  be  no  doubt  that,  under  sections  17,  23,  and  25 
of  the  statute  of  descents,  the  surviving  wife  takes  the  interest  thereby 
conferred,  by  descent  and  as  heir  to  her  husband.  These  sections  are 
explicit  that  the  land  as  therein  provided  for  shall  descend  to  her. 
They  provide  for  the  disposition  of  lands  only  of  which  the  ancestor 
shall  die  seized.  There  is  no  incongruity  in  holding  that  in  such  cases 
the  widow  takes  as  heir  to  her  husband,  for  she  takes  simply  by  descent 
that  of  which  the  husband  died  seized,  and  which  must  go  by  descent 
to  some  heirs  in  the  absence  of  any  testamentary  disposition.  .  .  . 
But  the  language  as  well  as  the  subject-matter  of  section  27  is  entirely 
different.  There  is  no  intimation  therein  that  the  interest  therein  pro- 
vided for  shall  descend  to  the  surviving  wife.  It  provides  that  a  sur- 
viving wife  is  entitled,  etc.,  to  one-third  of  the  real  estate  of  which  her 
husband  may  have  been  seized  in  fee  simple  at  any  time  during  the 
marriage,  and  in  the  conveyance  of  which  she  may  not  have  joined  in 
due  form  of  law.  .  .  .  The  language,  unlike  that  of  sections  17, 
23,  and  25,  does  not  imply  that  she  is  to  take  one-third  of  such  proj>- 
erty  by  descent  as  the  heir  of  her  husband.  The  legislature  were  not 
guilty  of  the  solecism  of  providing  for  the  descent  to  an  heir  of  prop- 
erty not  belonging  to  the  ancestor." 

(g)  May  v.  Fletcher,  40  Ind.  575.  (h)  R.  S.  1881,  l\  2483,  2491,  2494. 


94  JOINDER  OF  PARTIES.  [CHAP. 

It  was  held,  therefore,  that  in  this  class  of  cases  the  wife  was  a  neces- 
sary party.1 

It  follows  from  these  decisions,  that  where  the  mortgage  is  given 
for  the  purchase-money,  and  the  wife  does  not  join  in  the  mortgage,  if 
the  husband  die  seized  of  the  real  estate,  the  wife  is  not  a  necessary 
party  to  a  suit  to  foreclose  the  mortgage  ;  but  if  the  husband  does  not 
die  seized,  but  has  conveyed  away  the  real  estate  by  deed,  in  which  the 
wife  did  not  join,  she  is  a  necessary  defendant. 

But  suppose  suit  should  be  brought  to  foreclose  the  mortgage  while 
the  husband  is  seized  of  the  real  estate,  without  joining  the  wife,  and 
after  judgment'  the  husband  should  convey  by  deed,  without  join- 
ing the  wife,  and  the  husband  should  die  before  sale.  What  effect 
would  the  judgment  and  conveyance  have  upon  the  rights  of  the  wife? 
According  to  the  later  decision  the  wife,  in  such  case,  would  have  an 
interest  in  the  real  estate,  and  she  would  not  take  it  at  the  husband's 
death  as  an  heir.  The  judgment  would  not  affect  her  rights,  because 
she  was  not  a  party  to  the  proceedings.  The  judgment  would  not  di- 
vest the  husband  of  his  seizin  of  the  land.  The  wife  would  not  be 
affected  by  the  husband's  conveyance,  because  she  was  not  a  party  to 
it.  The  wife  would  therefore  have  an  interest  in  the  real  estate,  and 
would  have  a  right  to  redeem.  The  right  of  the  wife  to  redeem  grows 
out  of  an  interest  held  by  her  at  tfie  time  of  the  foreclosure.  Then  it  was, 
it  is  true,  a  contingent  interest ;  but,  unlike  the  interest  of  the  heirs  of 
the  husband,  it  was  one  that  had  a  present  existence  that  could  not  be 
divested,  even  by  a  conveyance  of  the  husband.  This  interest  could  be 
divested  by  a  foreclosure  and  sale  of  the  real  estate  if  she  was  a  party 
to  the  proceeding;  but  not  being  a  party,  as  to  her,  the  conveyance  under 
the  foreclosure  would  be  precisely  the  same  as  if  made  by  the  husband 
alone.  Section  31,  cited  in  the  opinion  in  May  v.  Fletcher,  simply 
provides  that  the  widow  shall  not  be  entitled  to  her  one-third  of  the 
real  estate  as  against  the  mortgagee  or  persons  claiming  under  him,  where 
the  mortgage  is  given  for  the  purchase- money  and  not  signed  by  her. 
The  evident  intention  of  the  legislaure  was  tj  place  a  mortgage  by 
the  husband  alone,  for  purchase- money,  upon  the  same  footing  with 
mortgages  given  for  other  purposes  and  signed  by  the  wife,  and  to 
make  the  wife's  rights  the  same  in  each  case.  This  is  very  clearly 
stated  in  May  v.  Fletcher :  "It  is  quite  clear  that  if  a  wife  execute  a 

(i)  Brannon   v.   May,    42   Ind.   92;  423;    Eisman   v.   Poindexter,   52  Ind. 

Johnson  v.  Miller,  47  Ind.  376;  Bowen  401;     Myers  v.  Myers,  57   Ind.   307; 

v.  Preston,   48  Ind.  367;  McCafiey  v.  Graves  v.  Braden,  62  Ind.  93;  Kissel 

Corrigan,  49  Ind.  175  ;  Strong  v.  Clem,  v.  Eaton,  64  Ind.  248. 
12  Ind.  37 ;  Taylor  v.  Sample,  51  Ind. 


V.]  JOINDER  OF   PARTIES.  95 

mortgage  with  her  husband,  not  for  purchase -money,  she  may  re- 
deem. We  see  no  substantial  difference,  so  far  as  the  right  of  redemp- 
tion is  concerned,  between  that  case  and  the  case  of  a  mortgage  exe- 
cuted by  the  husband  alone  for  purchase-money.  In  both  cases,  under 
our  law,  the  legal  title  remains  in  the  husband,  but  subject  to  the  in- 
cumbrance.  The  thirty-first  section  provides  that  the  surviving  wife 
shall  not  be  entitled  to  one-third  of  the  land  as  against  the  mort- 
gagee, for  purchase-money,  or  those  claiming  under  him,  though  she 
did  not  join  in  the  mortgage.  This  is  not  to  be  construed  to  bar  her 
claim  as  against  such  persons  as  individuals  merely,  but  only  as  they 
claim  under  the  mortgage.  In  both  cases  the  m/e  retains  her  interest, 
subject  to  tJie  incumbrance,  and  a  like  interest  in  either  case." 

It  must  be  noticed  that,  in  the  case  of  May  v.  Fletcher,  the  court 
was  not  considering  the  question  whether  the  wife  was  a  necessary 
party,  but  whether  she  had  the  right  to  redeem.  It  does  not  follow, 
from  the  conclusion  reached,  that  she  had  the  right  to  redeem,  that 
she  was  a  necessary  party.  Persons  who  are  only  proper  parties  may 
have  the  right  to  redeem.  But  it  may  be  laid  down  as  a  safe  rule,  that 
where  the  right  of  a  party  to  redeem  grows  out  of  any  interest  he  has 
in  the  real  estate  at  the  time  of  the  foreclosure  as  owner,  he  is  a  neces- 
sary party.  And  though  the  learned  judge  admits,  broadly,  that  if  the 
wife  takes  by  descent  she  can  not  redeem,  he  proceeds  to  refute  the 
statement  by  a  course  of  reasoning  that  is  very  convincing.  In  all  of 
these  cases,  although  it  is  held  that  the  widow  is  an  heir,  it  is  admit- 
ted that  she  is  not  so  "  in  the  strict  common-law  sense."-"  She  is  just 
such  an  heir  as  the  statute  makes  her. 

The  statute  makes  the  very  important  distinction  between  her  and 
an  heir  "  in  the  strict  common-law  sense,"  that  her  rights  can  not  be 
divested  by  any  act  of  the  husband,  and  when  it  is  said,  in  May  v. 
Fletcher,  that  a  "judgment  against  the  ancestor  binds  the  heir,"  the 
court  must  be  understood  as  speaking  of  common-law  heirs.  The 
learned  judge  certainly  did  not  mean  to  be  understood  that  a  judg- 
ment against  the  husband  bound  the  wife's  interest  in  his  real  estate. 

As  the  statute  protects  the  interest  of  the  wife  against  any  convey- 
ance of  the  husband  in  which  she  does  not  join,  the  same  protection 
must  be  accorded  to  her  under  a  sheriff's  sale  upon  a  judgment  against 
the  husband  alone.  In  such  case  the  sheriff  could  sell  and  convey  just 
what  the  husband  could  convey,  and  no  more.  As  against  his  heirs, 
strictly  speaking,  the  husband  could  convey  the  whole  estate,  and  the 
heirs  at  his  death  would  take  nothing.  As  against  the  wife  he  could 

( j)  Fletcher  v.  Holmes,  32  Tnd.  497. 


96  JOINDER   OF   PARTIES.  [CHAP. 

convey  the  estate  subject  to  the  right  of  Hie  wife  to  her  one-third  at  his 
death. 

The  conveyance  of  the  sheriff,  in  a  foreclosure  suit  against  the  hus- 
band alone,  would  have  precisely  the  same  effect.  The  position  taken 
that  because  the  wife  is  not  entitled  to  her  one-third  as  against  Hie  mort- 
gagee she  is  not  a  necessary  party,  has  no  force.  The  same  may  be 
said  of  the  husband  who  signed  the  mortgage.  He  has  no  right  to 
claim  an  interest  in  the  land  as  against  the  mortgagee,  but  it  would 
hardly  be  claimed  that  therefore  the  husband  is  not  a  necessary  party. 
The  husband  is  a  necessary  party  to  bind  him  that  he  has  no  right  to 
claim  the  land  as  against  the  mortgagee  because  of  his  having  given 
the  mortgage.  The  wife  is  a  necessary  party  to  bind  her  that  she  has 
no  right  to  claim  her  one-third  of  the  real  estate  as  against  the  mort- 
gagee, because  the  mortgage  was  given  for  purchase-money.  The 
rights  of  the  wife  would  not  be  affected  by  the  judgment  without  her 
being  made  a  party,  any  more  than  would  the  rights  of  the  husband 
if  he  were  not  joined.  Until  a  judgment  is  rendered  against  the  wife, 
establishing  the  fact  that  the  mortgage  was  given  for  purchase-money, 
the  statement  that  it  was  given  for  such  purpose  is  mere  assumption. 
She  would  not  be  bound  by  any  recitals  in  the  mortgage  to  that  effect, 
nor  by  the  judgment  establishing  the  fact,  because  she  was  a  party  to 
neither.  A  careful  study  of  the  cases  referred  to  on  this  point,  it  is 
believed,  will  satisfy  the  reader  that  the  wife  is  shown  by  the  reasoning 
of  the  court  to  be  a  necessary  party  in  cases  of  this  kind,  whatever  may 
have  been  the  conclusion  reached. 

138.  Effect  of  statute  making  wife's  interest  absolute  on 
judicial  sale. — \\re  have  the  following  statute  enacted  since  these  de- 
cisions were  rendered : 

"  In  all  cases  of  judicial  sales  of  real  property  in  which  any  married 
woman  has  an  inchoate  interest  by  virtue  of  her  marriage,  where  the 
inchoate  interest  is. not  directed  by  the  judgment  to  be  sold,  or  barred 
by  virtue  of  such  sale,  such  interest  shall  become  absolute,  and  vest  in 
the  wife  in  the  same  manner  and  to  the  same  extent  as  such  inchoate 
interest  of  a  married  woman  now  becomes  absolute  upon  the  death  of 
the  husband,  whenever,  by  virtue  of  said  sale,  the  legal  title  of  the 
husband  in  and  to  such  real  property  shall  become  absolute  and  vested 
in  the  purchaser  thereof,  his  heirs  or  assigns,  subject  to  the  provisions 
of  this  act,  and  not  otherwise.  That  when  such  inchoate  right  shall 
become  vested,  under  the  provisions  of  this  act,  such  wife  shall  have 
the  right  to  the  immediate  possession  thereof,  and  may  have  partition, 


V.]  JOINDER   OF   PARTIES.  97 

upon  agreement  with  the  purchaser,  his  heirs  or  assigns,  or  upon  de- 
mand, without  the  payment  of  rent,  have  the  same  set  off  to  her."k 

This  statute  is  not  intended  to  add  to  the  rights  of  the  wife  or  give 
her  any  additional  interest  in  the  lands  of  the  husband.  It  has  the 
effect,  however,  in  case  of  judicial  sales,  to  convert  the  inchoate  inter- 
est of  the  wife  into  an  absolute  interest  when  the  land  is  sold,  and  au- 
thorizes her  to  bring  suit  for  partition  and  have  her  one-third  of  the  real 
estate  set  off  to  her,  and  this  may  be  done  "  where  the  inchoate  interest 
is  not  directed  by  the  judgment  to  be  sold,  or  barred  by  virtue  of  such  sale" 

Suppose,  under  this  statute,  a  mortgage  had  been  given  for  purchase- 
money  by  the  husband  alone ;  could  the  right  of  the  wife  to  bring  her 
.action  for  partition  be  barred  by  a  foreclosure  and  sale  against  the  hus- 
band alone?  If  the  only  right  of  the  wife  is  to  redeem,  she  is  not  a 
necessary,  but  a  proper  party ;  but  if  she  has  such  an  interest  in  the 
land  as  entitles  her  to  partition  and  to  recover  the  one-third,  she  is  a 
necessary  party.  Under  this  statute,  where  her  interest  was  before  in- 
choate, it  is  now  absolute  the  moment  the  purchaser  at  the  sale  obtains 
title. 

According  to  the  case  of  Fletcher  v.  Holmes,  she  has  no  interest  in 
the  husband's  land  during  his  life,  but  takes  as  his  heir  at  his  death  ; 
and,  as  against  a  mortgage  for  purchase-money,  she  has  not  even  the 
right  to  redeem. 

The  case  of  May  v.  Fletcher  is  otherwise.  It  holds  that  she  has  an 
inchoate  interest,  whether  she  takes  as  heir  or  by  virtue  of  her  marital 
rights,  and  in  either  case  she  has  the  right  to  redeem ;  but  that,  in 
case  the  husband  died  seized,  she  takes  as  heir,  subject  to  the  mortgage, 
and  her  right  is  limited  to  the  redemption  of  the  real  estate,  and  if  the 
husband  has  conveyed  the  real  estate,  her  inchoate  right  becomes  ab- 
solute at  his  death,  giving  her  the  right  not  only  to  redeem,  but  to 
maintain  her  action  to  recover  the  real  estate.  So  that,  under  this 
statute,  if  the  husband  has  conveyed  the  real  estate  by  deed,  in  which 
the  wife  did  not  join,  she  is  not  a  necessary  party,  and,  if  not  joined, 
she  may  bring  her  action  to  partition  the  land  and. recover  her  one- 
third. 

If  the  mortgage  is  foreclosed  against  the  husband,  and  the  real  es- 
tate sold  under  the  decree  of  foreclosure,  this  would  entitle  her  to  par- 
tition the  same  as  if  the  husband  himself  had  conveyed,  as  the  hus- 
band's seizin  is  thereby  divested,  and  the  wife  would  not  take  as  heir, 
but  as  his  widow  under  section  27. 

While  I  have  attempted  to  show  that  the  wife  is  a  necessary  party 

(k)  R.  S.  1881,  \  2508. 
7 


98  JOINDER   OF   PARTIES.  [OHAP. 

in  an  action  to  foreclose  a  mortgage  for  purchase-money,  no  matter  un- 
der what  section  of  the  statute  she  takes,  or  whether  she  takes  as  heir 
or  by  virtue  of  her  marital  rights,  the  later  decisions  fix  the  law  of  this 
state  the  other  way,  and  I  have  endeavored  to  give  the  views  of  the 
courf  in  the  two  leading  cases  on  the  point.  They  are  entirely  irrecon- 
cilable, and  therefore  the  last  must  be  taken  as  the  law. 

139.  Wife  can  not  maintain  an  action  for  partition  where 
mortgage  is  assumed  by  husband  for  purchase-money. — It 
has  been  held  in  a  late  case  that  where  the  husband  purchases  real  estate 
subject  to  a  mortgage,  his  wife  can  not  maintain  an  action  for  partition 
against  the  purchaser,  under  a  foreclosure  of  such  mortgage,  where  she 
was  not  joined  in  the  action,  but  that  her  only  right  is  to  redeem.    She 
would  not,  therefore,  be  a  necessary  but  a  proper  party  defendant  in 
the  action  to  foreclose.1 

As  it  is  well  settled  by  the  cases  cited  that  the  wife  is  a  proper  party 
in  all  of  these  cases,  she  should  invariably  be  joined  in  the  action.™ 

The  authorities  on  the  question  whether  the  wife  is  a  necessary  party 
where  she  signed  the  mortgage  are  very  conflicting.  Our  own  supreme 
court  has  not  passed  upon  the  point  directly,  but  in  several  cases  she  is 
spoken  of  as  a  proper  party.  The  attempt  has  been  made  to  show  that 
her  rights  under  a  mortgage,  given  for  purchase-money  by  the  husband, 
and  one  signed  by  her,  are  the  same.  If  so,  the  rule  laid  down  in 
May  v.  Fletcher,  would  govern,  and  she  would  be  a  necessary  party  in 
some  cases,  Avhile  in  others  she  would  not." 

140.  "Who  must   be   made   defendants,   mortgagor  being 
dead. — In  actions  to  foreclose  after  the  death  of  the  mortgagor,  his 
heirs  are  necessary  parties  if  he  dies  intestate.0 

If  the  title  to  the  real  estate  mortgaged  has  been  conveyed  by  will, 
the  persons  to  whom  the  same  is  devised  are  necessary,  but  the  heirs 
of  the  mortgagor  who  have  no  title  to  the  particular  real  estate  covered 
by  the  mortgage,  are  neither  necessary  nor  proper  parties. 

141.  Owner  of  real  estate  must  be  made  a  defendant. — 
It  has  been  held  in   this  state  that  where   the   mortgagor  has  con- 

(1)  Kissell  v.  Eaton,  04  Ind.  248.  216;    Jones    on    Mortgages,   §§   1420, 

(m)  Pomeroy's  Kemedies,  §§343.  344.  1421,    1422;     Pomeroy's   Kemedies,    $ 

(n)  Ante,  §137;  Chambers  v.  Nich-  343. 

oison,  30  Ind.  349;  "Watt  v.  Alvord,  25  (o)   Muiri;.  Gibson,  8  Ind.  187;  New- 

Ind.  533;    Martin  v.  Noble,  29  Ind.  kirk  v.  Burson,  21  Ind.  129. 


V.]  JOINDER  OF  PARTIES.  99 

veycd  the  real  estate,  the  owner  of  the  real  estate  is  not  a  necessary 
party  in  an  action  to  foreclose  the  mortgage.1* 

Notwithstanding  the  rule  laid  down  in  these  cases,  that  the  owner 
of  the  land  is  not  a  necessary  party,  the  great  weight  of  authority  and 
reason  is  the  other  way.  Under  our  statute  the  mortgagor  is  the 
owner  of  the  legal  title,  and  the  mortgage  vests  in  the  mortgagee  noth- 
ing more  than  a  simple  lien  upon  the  real  estate ;  q  therefore,  a  convey- 
ance by  the  mortgagor  passes  the  legal  title  to  the  purchaser.  The 
owner  of  the  legal  title  is  a  necessary  party  to  the  foreclosure  proceed- 
ing, as  a  foreclosure  and  sale,  without  making  him  a  party,  would  not 
bind  him,  and  no  title  would  pass  to  the  purchaser  under  the  foreclosure 
sale.  If  the  mortgagor  owned  nothing  more  than  the  equity  of  redemp- 
tion, as  was  formerly  the  law,  a  purchaser  from  him  would  own  but  the 
equity  of  redemption,  and  would,  in  such  case,  be  a  proper  but  not  a 
necessary  party,  but  being  the  owner  of  the  legal  title,  the  foreclosure 
proceeding  without  making  him  a  party,  and  a  sale  under  it  would  be 
an  absolute  nullity/  t 

142.  Mortgagor  who  has  conveyed  real  estate  not  a 
necessary  party. — Where  the  mortgagor  has  conveyed  the  legal  title 
he  ceases  to  be  a  necessary  party  to  an  action  to  foreclose.  If  a  per- 
sonal judgment  is  sought  against  him,  in  addition  to  the  foreclosure  of 
the  mortgage,  the  mortgagor  is  a  necessary  party  for  that  purpose. 

Where  the  purchaser  has  assumed  the  payment  of  the  mortgage  per- 
sonal judgment  may  be  taken  against  him,  and  the  mortgagor  is  not  a 
necessary  party,  even  for  the  purpose  of  recovering  a  personal  judg- 
ment. 

We  have  seen  that  where  a  third  party  agrees  to  pay  the  debt  of  an- 
other the  creditor  may  sue  the  third  party  for  the  debt.  This  is  true 
in  case  of  debts  secured  by  mortgage  as  well  as  others ;  and  where  a 
party  purchases  real  estate  incumbered  by  mortgage,  and  assumes  and 
agrees  to  pay  the  mortgage  debt,  the  mortgagee  may  look  to  the  pur- 
chaser of  the  real  estate  for  the  payment  of  the  debt,  and  sue  him 
without  joining  the  mortgagor  in  the  action.8 

And  where  several  conveyances  have  been  made  of  the  real  estate,  eub- 

(p)  Cline  v.  Inlow,  14  Ind.  419;  v.  Gooding,  99  Ind.  45;  Petry  v.  Am- 

Sumraer  v.  Coleman,  20  Ind.  486.  brosher,  100  Ind.  511. 

(q)  Eeasoner  v.  Edmondson,  5  Ind.  (s)  Stevens  v.  Campbell,  21  Ind.  471 ; 

393;  Francis  v.  Porter,  7  Ind.  213;  Burkham  v.  Beaner,  17  Ind.  367;  Kel- 

Morton  v.  Noble,  22  Ind.  160;  Grable  lenberger  v.  Boyer,  37  Ind.  188;  Story's 

v.  McCulloch,  27  Ind.  472;  Fletcher  Eq.  PI.,  §  197;  The  Eaton,  etc.,  U.K. 

v.  Holmes,  32  Ind.  497.  Co.  v.  Hunt,  20  Tnd.  457;  Shaw  v. 

(r)  Pomeroy's  Remedies,  \\  330,336;  Hoadley,  8  Blkf.  165;  Jones  on  Mort- 

Mark  v.  Murphy,  76  Ind.  534;  Curtis  gages,  '&  1402,  1403,  1404,  1407. 


100  JOINDER   OF  PARTIES.  [CHAP. 

sequent  to  the  execution  of  the  mortgage,  and  each  of  the  purchasers , 
has  assumed  the  payment  of  the  mortgage  debt,  the  mortgagor  may 
sue  the  last  purchaser  abne,  and  recover  a  personal  judgment  against 
him  as  well  as  a  decree  of  foreclosure.  Neither  the  mortgagor  nor  the 
intervening  purchasers  who  have  assumed  the  payment  of  the  debt  are 
necessary  parties.' 

But  where  the  purchaser  takes  the  real  estate,  subject  to  the  mort- 
gage, without  assuming  the  payment  of  the  mortgage  debt,  he  does 
not  become  personally  liable  therefor ;  and,  in  order  to  recover  a  per- 
sonal judgment  for  the  debt,  the  mortgagor  is  a  necessary  party.  It 
must  be  understood,  also,  that  the  mortgagee  is  not  bound  by  any 
agreement  or  arrangement  between  the  mortgagor  and  purchasers  from 
him ;  therefore  the  mortgagee  may  still  look  to  the  mortgagor  for  pay- 
ment of  the  debt,  notwithstanding  the  grantees  have  assumed  its  pay- 
ment, and  may  join  him  in  the  action,  for  the  purpose  of  recovering 
a  personal  judgment  against  him.  All  purchasers,  subsequent  to  the 
mortgage,  are  properly  joined  as  defendants;  and  a  personal  judg- 
ment may  be  taken  against  all  who  have  assumed  the  payment  of 
the  debt." 

143.  When  mortgagor  has  conveyed  part  of  real  estate 
mortgaged. — Where  the  mortgagor  conveys  different  tracts  of  the 
mortgaged  real  estate,  and  retains  a  part  himself,  the  purchasers  from 
him  are  not  necessary  parties  to  an  action  to  foreclose  ;  but  the  decree, 
when  recovered,  would  not  bind  that  part  of  the  real  estate  owned  by 
persons  not  parties  to  the  action.     The  decree  would  be  binding  upon 
that  part  of  the  real  estate  still  owned  by  the  mortgagor.     But  in  order 
to  bind  the  whole  of  the  real  estate  all  of  the  owners  must  be  joined  in 
the  action.  The  question  as  to  what  part  of  the  real  estate  should  be  first 
applied  to  the  payment  of  the  debt  is  one  in  which  the  mortgagee  is 
not  interested.     He  may  enforce  his  mortgage  against  the  whole  of  the 
property,  or  only  that  part  still  owned  by  the  mortgagor,  at  his  option, 
subject  to  the  right  of  the  purchasers  from  the  mortgagor  to  have  that 
part  of  the  real  estate  still  owned  by  him  first  exhausted  for  the  pay- 
ment of  the  debt.v 

144.  If  mortgagor  deceased,  personal  representatives  not 
necessary  parties. — If  the  mortgagor  dies  the  owner  of  the  real  es- 
tate, no  personal  judgment  can  be  recovered  without  making  his  per- 

(t)  Scarry  v.  Eldridge,  63  Ind.  44 ;         (v)  Douglass   v.    Bishop,    27   Iowa, 

Petry  v.  Ambrosher,  100  Ind.  510.  214 ;  Pomeroy's  Remedies,  ?  336  ;  Jones 

(u)  Pomeroy's     Remedies,     \    337;  on  Mortgages,  §§  1405,  1406. 
Jones  on  Mortage*,  ??  1403,  1406. 


V.]  JOINDER   OF   PARTIES.  101 

sonal  representative  a  party ;  but  the  personal  representative  is  not  a 
necessary  party  to  the  foreclosure  of  the  mortgage. w 

145.  Junior   incumbrancers   proper,   but   not   necessary 
parties. — Junior  incumbrancers  are  proper,  but  not  necessary  parties 
defendant  in  foreclosure  proceedings.1    In  all  cases  where  the  party  has 
such  an  interest  in  the  real  estate  as  would  entitle  him  to  redeem,  he 
may  be  regarded  as  a  proper  party  defendants 

146.  Pendente  lite  purchasers. — Where  the  real  estate  is  con- 
veyed after  the  suit  to  foreclose  has  been  brought,  or  any  liens  have  at- 
tached pendente  lite,  the  purchaser  or  persons  obtaining  such  liens  need 
not  be  made  parties  to  the  action.     It  is  only  such  parties  as  have  an 
interest  in  the  real  estate  at  the  time  suit  is  brought  that  are  proper 
parties.* 

147.  Heirs  of  purchaser. — Where  the  mortgagor  has  transferred 
the  real  estate,  and  the  purchaser  is  deceased,  his  heirs  are  necessary 
parties  to  the  action." 

148.  Prior  incumbrancers. — Prior  incumbrancers  are  proper, 
but  not  necessary,  parties.b 

149.  Surviving  partners. — Where  a  mortgage  is  given  jointly 
by  the  mortgagors  as  partners,  upon  the  death  of  one  the  mortgage 
must  be  foreclosed  against  the  survivor,  without  joining  the  heirs  or 
widow  of  the  deceased  partner.0 

PARTNERSHIP  CONTRACTS. 

150.  Common-law  rule  where  one  partner  is  deceased. — 

At  common  law,  the  rule  was  that  the  surviving  partner  was  the  only 
proper  party  defendant  in  actions  on  partnership  contracts,  and  that 

(w)  Slaughter  v.  Foust,  4  Blkf.  379;  34   Ind.   262;    Murdock   v.   Ford,   17 

John  v.  Hunt,  1  Blkf.  324;  Newkirk  Ind.  52. 

v.  Burson,  21  Ind.  129;  Watts  v.  Green,  (y)  Jones   on    Mortgages,   §§   1394, 

30  Ind.  98;  Jones  on  Mortgages,  §  1414.  1395,  1396. 

(x)  Pattison  v.  Shaw,  6   Ind".   377;  (z)  Jones  on  Mortgages,  §  1411. 

Kenton  v.  Spencer,  6  Ind.  321 ;  Mack  (a)  Milroy  v.  Stockwell,  1  Ind.  35; 

v.  Grover,  12  Ind.  254;   Harris  v.  Har-  Jones  on  Mortgages,  §  1415. 

lin,  14  Ind.  439;  Meridith  v.  Lackey,  (b)  Wright  v.  Bundy,  1.1  Ind.  398; 

14  Ind.  529 ;  Proctor  v.  Baker,  15  Ind.  Pattison  v.  Shaw,  6  Ind.  377  ;  Masters 

178;  Meridith  v.  Lackey,    16  Ind.  1;  ».  Templeton,  92  Ind.  447. 

Bowen  r.  Wood,  35  Ind.  268;   Martin  (c)  Huston  v.  Neal,  41  Ind  504. 
v.  Noble,  29  Ind. 216;  Holmes  r.  Bybec, 


102  JOINDER   OF   PARTIES.  [CHAP. 

the  personal  representative  of  the  deceased  partner  could  not  be  joined 
in  the  action.  The  creditors  of  the  partnership  were  confined  in  their 
remedy  at  law  to  an  action  against  the  surviving  partner. d 

151.  Equitable  rule. — The  rule  in   equity  was  different.     Mr. 
Story,  in  his  work  on  partnership,  says : 

"  We  have  seen  that,  at  common  law,  the  sole  right  of  action  of  the 
joint  creditors  is  against  the  survivors  ;  and  the  inquiry  here  naturally 
presented  is,  whether  they  have  any  remedy  in  equity?  The  doctrine 
formerly  held  upon  this  subject  seems  to  have  been  that  the  joint  cred- 
itors had  no  claim  whatsoever  in  equity  against  the  estate  of  the  de- 
ceased partner,  except  when  the  surviving  partners  were  at  the  time, 
or  subsequently  became,  insolvent  or  bankrupt.  But  that  doctrine  has 
since  been  overturned ;  and  it  is  now  held  that,  in  equity,  all  partnership 
debts  are  to  be  deemed  joint  and  several,  and  consequently  the  joint 
creditors  have,  in  all  cases,  a  right  to  proceed  at  law  against  the  sur- 
vivors, and  an  election,  also,  to  proceed  in  equity  against  the  estate  of 
the  deceased  partner,  whether  the  survivors  be  insolvent  or  bankrupt 
or  not.  The  consequence  is,  that  the  joint  creditors  need  not  now  wait 
until  the  partnership  affairs  are  wound  up,  and  a  final  adjustment  thereof 
is  made ;  but  they  may  at  once  proceed,  as  upon  a  joint  and  several 
contract,  in  equity  against  the  estate  of  the  deceased  partner ;  al- 
though, in  any  such  suit,  the  surviving  partners  must  be  made  parties, 
as  persons  interested  in  taking  the  account."6 

Mr.  Parsons  says :  "Thus,  after  some  conflict  and  uncertainty,  it 
seems  now  to  be  settled  in  England  that  on  the  death  of  a  partner  a 
creditor  of  the  firm  may  proceed  at  once  in  equity  against  the  estate  of 
the  deceased,  whether  the  firm  or  the  surviving  partners  be  solvent  or 
otherwise,  the  court  requiring,  however,  that  the  surviving  partners 
should  be  made  parties  because  they  are  interested  in  the  account. "f 

152.  Under  the  code. — According  to  these  authorities  the  partner- 
ship creditor  might  sue  the  survivor  alone,  at  law,  or  he  might  proceed 
in  equity  against  the  personal  representative  of  the  estate  of  the  de- 
ceased partner,  making  the  surviving  partner  a  party  to  the  action. 

It  was  held  in  this  state,  under  the  statute  of  1838,  that  the  admin- 
istrator of  the  deceased  partner  might  be  sued  at  law  for  the  debt  with- 
out joining  the  surviving  partner,  or  the  surviving  partner  might  be 
sued  alone.g 

(d)  Story   on    Partnership,    §§   361,  (e)  Story  on  Partnership,  §  362. 

362  and  notes;   Burgwin  v.  Hostler,  1  (f )  Parsons'  Part.  448. 

Am.  Dec.  582  (Taylor,  124)  ;  Chittyon  (g)  Ransom  v.  Pomeroy,  5  Blkf.  383; 

Pleading,  p.  57.  Parker  v.  Miller,  7  Blkf.  150. 


V.]  JOINDER   OF    PARTIES.  103 

The  statute  of  1838  expressly  authorized  the  personal  representative! 
of  a  joint  obligor  to  be  sued  in  the  same  manner  as  if  the  obligors  were 
jointly  and  severally  liable.11 

This  provision  of  the  statute  of  1838  has  not  been  carried  into  the 
code  of  1852,  and  the  question  whether  the  survivor  and  the  personal 
representative  of  the  deceased  partner  can  be  sued  jointly,  or  the  per- 
sonal representative  sued  alone,  must  depend  upon  the  general  provi- 
sion of  the  code  with  reference  to  parties.  That  the  personal  represen- 
tative of  a  deceased  joint  contractor  can  not  be  joined  with  the 
survivor  has  been  shown  already.'  There  is  a  material  difference 
between  the  contract  of  joint  contractors  and  that  of  partners,  so  far 
as  the  liabilities  of  the  parties  are  concerned.  The  surviving  partner 
represents  the  partnership,  and  is  required  by  statute  to  inventory  the 
property  and  settle  the  partnership  business."  The  personal  repre- 
sentative of  the  deceased  partner  has  no  interest  in  the  partnership 
property  as  against  partnership  creditors.  His  only  right  is  to  any 
surplus  remaining  after  payment  of  the  debts  and  the  settlement  of 
the  partnership  business.1' 

It  is  equally  well  settled  that  in  case  of  the  death  of  one  of  the 
partners,  the  partnership  creditors  must  look  to  the  partnership  prop- 
erty for  the  payment  of  their  debts,  at  least  as  between  them  and  the 
individual  creditors  of  the  deceased  partner.1 

The  partnership  property  being  the  primary  fund  out  of  which  the 
partnership  debts  are  to  be  paid,  it  would  seem  to  be  the  reasonable 
rule  to  require  that  the  partnership  fund  should  be  exhausted  before 
applying  to  the  property  of  the  deceased  partner,  and  that  the  surviving 
partner  should  be  first  sued  before  an  action  could  be  maintained 
against  his  estate,  except  where  it  is  shown  that  there  are  no  partner- 
ship funds  out  of  which  the  debt  could  be  made ;  but  as  we  have  seen 
the  rule  was  carried  beyond  this  in  equity,  the  creditor  being  allowed 
to  proceed  directly  against  the  estate  of  the  deceased  partner,  the  only 
requirement  being  that  the  surviving  partners  should  be  joined  as  par- 
ties because  they  were  interested  in  the  accounting.111 

(h)  Stat.  1838,  p.  358,  §  2.  (1)  Matlock  v.  Matlock,  5  Ind.  403; 

(i)  Ante,  §  124.  Holland  v.  Fuller,  13  Ind.  195;  Dean 

( j)  1  K.  S.  1876,  p.  641.  v.  Phillips,  17  Ind.  406;  Smiths.  Evans, 

(k)  Holland  v.  Fuller,  13  Ind.  195;  37  Ind.  526;  Schaeffer  v.  Fithian,  17 

Matlock  v.  Matlock,  5  Ind.  403;  Hun-  Ind.  463;  Kistner  v.  Sidlinger  33  Ind. 

ter  v.  Neal,  41    Ind.   504;    Skillen   v.  114;   Hardy  v.  Overman,  36  Ind.  549; 

Jones,    44    Ind.    136-144;     Krutz    v.  Olleman  v.  Reagan,  28  Ind.  109. 

Craig,  53  Ind.  561,  572;   Lindley  Part.  (m)   Ante,  §  151. 

1033;  Parsons'  Part.  440,  443;  Story'.* 

Part.,  ?  340. 


104  JOINDER   OF   PARTIES.  [CHAP. 

153.  The  authorities  under  the  code. — The  first  case  where  the 
question  was  considered  in  Indiana,  after  the  code  of  1852  was  enacted, 
was  that  of  Braxton  v.  The  State,"  which  was  an  action  on  an  execu- 
tor's bond.  One  of  the  executors  being  dead,  his  administrators  were 
sued  jointly  with  the  surviving  executors.  They  contended  that  they 
were  improperly  joined,  but  the  supreme  court  held  otherwise.  The 
question  of  the  right  to  sue  the  deceased  partner  in  the  first  instance 
was  not  before  the  court,  but  the  court  took  occasion  to  discuss  it. 

After  stating  the  common-law  rule  that  the  surviving  partner  alone 
could  be  sued,  and  that,  formerly,  the  estate  of  the  deceased  partner 
was  only  liable  in  equity  after  the  remedy  against  the  survivor  had 
been  exhausted,  the  court  say  :  "  This  rule  has  been  adhered  to  by  most 
of  the  American  courts.  But,  under  the  recent  decisions  in  England, 
the  representatives  of  the  deceased  partner  may  be  proceeded  against 
in  equity  in  the  first  instance,  without  any  previous  resort  to  the  sur- 
viving partner,  or  any  evidence  of  his  insolvency.  In  an  early  decis- 
ion in  this  state,  this  court  adhered  to  the  rule  recognized  by  the 
leading  American  cases.0 

"  The  same  rule  seems  to  have  been  applied  to  other  joint  obligations,, 
though  the  reason  for  the  rule  is  not  applicable." 

It  was  held  that,  as  the  distinction  between  actions  at  law  and  suits 
in  equity  were  abolished,  and  it  was  provided  that  any  person  might 
be  made  a  defendant  who  had  or  claimed  an  interest  in  the  controversy 
adverse  to  the  plaintiff,  or  was  a  necessary  party  to  a  complete  deter- 
mination or  settlement  of  the  question  involved,  the  administrators 
were  properly  joined  in  the  action.  It  has  since  been  held  that  the 
bond  sued  on  in  this  case  was  not  joint  and  several,  and,  so  far  as  the 
case  holds  otherwise,  it  has  been  expressly  overruled.15 

And,  since  this  decision  was  rendered,  the  statute  for  the  settlement 
of  decedents'  estates  has  been  so  amended  as  to  provide,  in  express 
terms,  that  an  executor  or  administrator  can  not  be  joined  with  the 
surviving  debtor.q  In  the  case  of  Myerv.  Thornburg,  the  plaiutfFhad 
brought  his  action  against  the  surviving  partner,  and  recovered  judg- 
ment. An  execution  thereon  being  returned  nulla  bona,  he  filed  the 
note  sued  on  as  a  claim  against  the  estate  of  the  deceased  partner. 
The  claim  was  allowed  by  the  court  below,  but  the  estate  not  being 
solvent,  it  was  ordered  that  the  claim  should  not  be  paid  until  the  in- 
dividual creditors  of  the  estate  were  satisfied.  The  claimant  contended 
that  he  was  entitled  to  share  the  estate  pari  pasm  writh  the  individual 

(n)  Braxton  v.  The  State.  25  In d.  82.         (p)  The  State   v.   Wyant,   67   Ind. 
(o)  Citing  Brown  v.  Benight,  3  Blkf.     25,  33. 
39.  (q)  R-  S.  1881,  ?§  2311,  2312. 


V.]  JOINDER   OF   PARTIES.  105 

creditors,  and  this  was  the  question  presented  to  the  supreme  court. 
After  stating  the  rule  that  the  partnership  creditors  must  resort  to  the 
partnership  assets,  and  the  individual  creditors  to  the  assets  of  the  de- 
ceased partner,  the  court  say:  "There  is,  however,  an  exception  to 
this  rule  recognized  in  some  of  the  cases  which  would  be  applicable  to 
the  case  at  bar,  and,  if  admitted,  would  seem  to  take  the  case  out  of 
the  general  rule.  The  exception  is  this,  that  where  tliere  is  no  joint 
property  and  no  living  solvent  partner,  the  joint  creditors  are  entitled  to 
share  the  separate  property  paripasm  with  the  separate  creditors.  .  .  . 
Such  is  the  settled  and  established  rule,  as  we  are  enabled  to  collect  it, 
both  in  bankruptcy  and  in  equity;  and,  according  to  this  rule,  the 
complainant  could  not,  in  this  case,  be  permitted  to  seek  indemnity  for 
his  claim  from  the  separate  estate  paripassu,  with  the  separate  creditors, 
as  it  is  a  conceded  fact  in  the  cause  that  there  are  joint  funds,  although 
very  inconsiderable,  and  greatly  insufficient  to  pay  the  debt  of  the 
complainant."  It  was  held  that  the  order  made  by  the  court  below 
was  proper. r 

While  the  question  of  parties  is  not  directly  presented  or  considered, 
the  reasoning  of  the  court  leads  to  the  conclusion  that  the  partnership 
creditors  can  not  sue  the  estate  of  the  deceased  partner,  where  there  are 
individual  creditors  of  the  estate,  without  first  exhausting  the  partner- 
ship assets,  or  showing  that  no  partnership  estate  exists. 

In  the  case  of  Dean  v.  Phillips  it  was  held  that  partnership  debts,  in 
equity,  were  joint  and  several,  and  that  the  "  creditors  of  a  firm  may 
collect  their  debts  out  of  the  property  of  one  of  its  members,  unless 
that  member  has  separate  creditors  who  are  entitled  to  be  first  paid  out 
of  his  separate  effects."8 

And  this  rule  was  applied  in  a  later  case  to  an  action  by  a  partner- 
ship creditor  against  the  heirs  of  a  deceased  partner  to  foreclose  a  mort- 
gage given  for  the  debt  of  the  firm.  The  heirs  answered  that  the  mort- 
gage was  given  for  the  firm  debt,  and  that  there  were  assets  of  the  firm 
sufficient  for  its  payment.  It  was  held  that  the  answer  was  insufficient 
for  want  of  an  allegation  that  there  were  individual  creditors,  the  court 
quoting  the  language  in  Dean  v.  Phillips  with  approbation.4 

In  the  case  of  Vance  v.  Cowing,  13  Ind.  460,  it  was  held  that  it  was 
not  necessary  for  the  complaint  against  the  administrator  to  show  that 
a  judgment  had  been  recovered  against  fhe  surviving  partner,  "because 

(r)  "Wegerr.  Thornburg,  15  Ind.  124,  part  1,  Lead.  Gas.  Eq.  72;    Story   on 

citing  1  Chitty  on  Plead.  50;  Story  on  Part.,  ?  363;   Muriell  v.  Neill,  8  How 

Part.,  §  362;   3  Kent's  Com.  74;  Me-  U.  S  414;  Stat.  1852,  p.- 262,  ?  70. 

Cnllough  v.  Dashiel,  and  notes,  1  Am.  (s)  Dean  v.  Phillip?,  17  Ind.  406. 

Lead  Cas.  460 ;  Silk  v.  Prime,  vol.  2,  (t)  Hardy  v.  Overman,  36  Ind.  549. 


106  JOIXDEIi   OF   PARTIES.  [dlAP. 

it  was  averred  that  he  icas  ami  continued  to  be  insolvent."  This  case  ad- 
heres to  the  rule  that  the  surviving  partner  must  be  first  sued,  except 
in  those  cases  M  here  the  partnership  is  shown  to  be  bankrupt  or  in- 
solvent. 

It  has  also  been  held  that  the  administrator  cau  not  be  joined  with 
the  surviving  partner  as  a  plaintiff',"  but  this  is  upon  the  ground  that 
he  has  no  interest  in  the  judgment  to  be  recovered.  The  surviving 
partner  has  the  right  to  assign  choses  in  action  of  the  firm,  and,  where 
the  indorsee  brings  suit  on  a  chose  in  action  so  assigned,  making  the 
surviving  partner  a  party  defendant  to  answer  as  to  his  interest  therein, 
the  administrator  of  the  deceased  partner  is  not  a  necessary  party. v 

The  case  of  McCoy  v.  Wilson  was  an  action  brought  against  the  sur- 
viving partner,  the  executor  of  the  deceased  partner,  and  a  third  party, 
who  was  surety  on  the  note  sued  on.  The  opinion  in  the  case  does  not 
disclose  whether  the  note  was  joint  or  several,  and  the  question  of  the 
joinder  of  the  parties  was  not  raised  or  considered. w 

Section  624  of  the  code  of  1881  provides  that  the  "estate's  execu- 
tors and  administrators  "  of  either  of  the  joint  contractors,  upon  his 
death,  shall  be  liable  "  to  the  same  extent,  and  in  the  same  manner,  as 
if  such  contracts  were  joint  and  several. "x  Whether  this  section  of 
the  code  was  intended  to  apply  to  partnership  contracts  may  well  be 
doubted,  as  the  rule  that  the  estates  of  partners  shall  be  liable  to  the 
same  extent  and  in  the  same  manner  as  in  ordinary  joint  and  several 
contracts  was  certainly  not  intended. 

154.  Effect  of  the  authorities. — It  will  be  seen  that  to  extract 
an  established  rule  from  these  cases  would  be  impossible.  Each  case 
is  a  case  to  itself,  fixing  no  rule  governing  cases  of  this  kind  generally, 
and  no  two  of  them  can  be  said  to  be  in  harmony,  while  they  are  de- 
cided in  such  general  terms  and  are  so  entirely  unsatisfactory  that  it  is 
equally  impossible  to  say  that  they  are  conflicting.  That  the  action 
can  be  maintained  against  the. surviving  partner  alone,  and  that  this  is 
the  better  practice,  is  well  settled.  That  the  partnership  creditor  may 
prqceed  against  the  estate  of  the  deceased  partner  without  first  suing 
the  surviving  partner,  wJiere  the  partnership  is  insolvent,  may  be  regarded 
as  settled  by  the  decisions  of  this  state. 

That  the  estate  of  the  deceased  partner  may  be  sued  in  the  first  in- 

(u)  Nicklaus  v.  Dahn,  63  Ind.  87.         v.  Fuller,  13  Ind.  195;  Conant  v.  Prary. 

(v)  Willson  v.  Nicholson,  61  Ind.  241,     49  Ind.  530 ;  1  Story's  Eq.  Jur.,  §  676. 
citing   Parsons'   Part.,   pp.    440,   441;         (w)   McCoy  v.  Wilson,  58  Ind.  447; 
Story's  Part.,  §?  328,  344,  362;  Holland     Ditts  v.  Lonsdale,  49  Ind.  521. 

(x)  K.  S.  1881,  ?624. 


V.]  JOINDER   OF   PARTIES.  107 

stance,  where  there  are  assets  belonging  to  the  partnership,  has  not 
been  expressly  decided,  and  such  a  practice  should  not  be  permitted. 
The  partnership  assets  being  the  primary  fund  out  of  which  the  part- 
nership debts  should  be  paid,  that  fund  should  be  first  exhausted. 
Under  the  present  statute  for  the  settlement  of  decedents'  estates,  it  is 
clear  that  the  surviving  partner  and  the  executor  or  administrator  can 
not  be  joined  in  the  same  action.7 

Mr.  Pomeroy,  in  his  work  on  Remedies,  in  speaking  of  the  joinder 
.of  the  survivor  and  the  personal  representative  of  the  deceased  joint 
contractor,  says:  "  It  is  now  established,  by  a  great  preponderance  of 
authority,  in  those  states  whose  codes  do  not  contain  the  special  pro- 
vision concerning  joint  liability  already  referred  to,  that  these  rules,  as 
they  existed  immediately  prior  to  the  reform  legislation,  have  not  been 
in  any  manner  modified,  but  remain  in  active  operation  as  a  part  of 
the  present  system.  The  practical  result  is,  upon  the  death  of  one  or 
more  joint  debtors,  obligors  or  promisors,  a  legal  action  can  be  main- 
tained against  the  survivors  alone,  and  in  such  action  the  personal 
representatives  of  the  deceased  can  not  be  made  defendants  for  any 
purpose.  An  equitable  action,  however,  can  be  maintained  against  the 
administrators  or  executors  of  the  deceased  when,  and  only  when, 
either  the  legal  remedy  against  the  survivors  has  been  exhausted,  or 
such  remedy  would  be  absolutely  useless.  In  such  equitable  action, 
therefore,  the  plaintiff  must  either  aver  and  prove  the  recovery  of  a 
judgment,  and  the  issue  and  the  return  of  an  execution  thereon  un- 
satisfied, against  the  survivors,  or  else  that  the  survivors  are  utterly 
insolvent. z 

"  The  rule  thus  established  in  New  York  and  some  other  states  dif- 
fers from  that  prevailing  in  England  in  a  single  particular.  The  Eng- 
lish court  of  chancery  permits  a  suit  against  the  personal  representa- 
tive of  the  deceased  at  once,  without  attempting,  much  less  exhaust- 
ing, any  remedy  at  law  against  the  survivor.  In  other  words,  the 
creditor  has  his  option  at  all  times  to  sue  the  survivor  at  law,  or  the 
representatives  of  the  deceased  in  equity,  whether  the  survivors  are 

(y)  K.  S.  1881,  §§  2311,  2312.  Whitney,  15  Ind.  280,  283;  Barlow  v. 

(z)  Citing  Voorhis  v.  Childs,  17  N.  Scott's  Adm'r,  12  Iowa,  63;  Pecker  v. 

Y.  354;  Richter  v.  Poppenhausen,  42  Cannon,    11    Iowa,   20;    Williams   v. 

N.Y.  373;  Pope  v.  Cole,  55  N.  Y.  124;  Scott's  Adm'r,  11  Iowa,  474;  County 

Lane  v.  Doty,  4  Barb.  534:  Vorhis  v.  of  Wapello  v.  Bingham,  10  Iowa,  39 

Baxter,  1  Abb.  Pr.  43;  Moorehouse  v.  Childs  v.  Hyde,  10  Iowa,  294;  People' 

Ballou,  16  Barb.  289;   Bentz  v.  Thur-  v.  Jenkins,  17  Cal.  500;  Humphreys  v. 

her,  1  N.Y.  Sup.  Ct.  645;  Maples  v.  Crane,  5  Cal.  173;*  May  v.  Hanson,  6 

Geller,  1  Nev.  233,  237,  239;  Fowler  v.  Cal.  642. 
Huston,  1  Nev.  469,  472;  Kimball  v. 


108  JOINDER    OF   PARTIES.  [CHAP. 

solvent  or  not ;  and  this  doctrine  has  been  adopted  in  several  Ameri- 
can states In  Indiana  it  is  declared  to  be  the  true  meaning 

and  intent  of  the  provisions  of  tJie  code  abolishing  the  distinctions  between 
legal  and  equitable  actiom,  and  introducing  the  equitable  principles  concern- 
ing parties,  and  providing  for  a  severance  in  tJie  judgment,  tiiat,  upon  the 
deatJi  of  one  or  more  joint;  or  joint  and  several  debtors  or  obligors,  an  action 
icill  lie  at  once  against  tJie  survivors  and  the  administrators  or  executors  of 
the  deceased."* 

The  learned  author,  it  must  be  understood,  is  considering  the  ques- 
tion of  ordinary  joint  contracts,  not  partnership  contracts,  but  it  will 
be  seen  that  in  Indiana  the  supreme  court  has  been  very  liberal  in  con- 
struing the  statute  authorizing  the  joinder  of  parties  in  this  class  of 
cases,  and  there  is  no  reason  why  the  same  rule  should  not  be  applied 
in  the  case  of  partnership  contracts,  save  that  the  partnership  property 
is  first  liable. 

The  statute  expressly  authorizes  the  court  to  render  the  judgment  in 
accordance  with  the  liability  of  the  parties  as  shown  upon  the  trial. b 

The  judgment  must  necessarily  be  joint;  but  the  court  has  ample 
power,  under  the  statute,  to  direct  that  the  partnership  effects  be 
first  exhausted.  The  survivor  could  not  be  joined  in  an  ordinary  claim 
filed  against  the  estate  of  the  deceased  partner.  Where  a  claim  is 
filed  against  an  estate,  it  has  been  held  that  no  other  party  can  be 
joined.0 

It  would  be  necessary,  therefore,  to  bring  a  civil  action  against  the 
administrator  and  the  surviving  partner,  which  can  not  be  done  under 
the  present  decedents'  act. 

155.  Dormant  partners. — A  dormant  partner  need  not  be  joined 
in  an  action  against  the  firm  of  .which  he  is  a  member;    but  when 
known  to  the  plaintiff,  he  may  be  joined  as  other  members  of  the  firm.d 

156.  Nominal  partners. — Nominal  partners  are  those  who  ap- 
pear or  are  held  out  to  the  world  as  partners,  but  who  have  no  real  in- 
terest in  the  firm  or  business.     They  are  liable  for  the  debts  of  the 

{a)  Pomeroys  Remedies,  §§  302-304,  (b)  R.  S.  1881,  §  568. 

citing  Braxton  v.  The  State,  '25  Ind.  (c)  Noble  v.  McGinnis,  55  Ind.  528; 

82;    Eaton    v.    Burns,    31    Ind.   390;  Niblack  v.  Goodman,  07  Ind.  174. 

Klussman    v.  Copeland,  18   Ind.  306;  (d)  Gilmore  v.  Merritt,  62  Ind.  525; 

Voris  v.  The  State,  47  Ind.  345,  349,  Goble  v.  Gale,  7  Blkf.  218;  Cregler  r. 

350;    Myers   r.  McCray,  47  Ind.  293,  Durham.  9   Ind.   375;    Story's    Part., 

297,  citing  Owen  i»  The  State,  25  Ind.  §  241 ;  Parsons'  Part.  290. 
107. 


V.]  JOINDER   OF   PARTIES.  109 

partnership,  and  should  be  joined  as  defendants  in  actions  against  the 
firm.6 

ACTIONS  TO   PARTITION   REAL   ESTATE. 

157.  All  the  owners  necessary  parties. — All  persons  owning 
an  estate  in  the  land,  whether  legal  or  equitable,  are  necessary  parties 
to  an  action  for  partition. f 

158.  Creditors. — A  creditor  of  the  ancestor  is  not  a  proper  party 
to  a  partition  proceeding  between  the  widow  and  heirs  ;  g  nor  is  a  lien- 
holder  whose  lien  covers  the  whole  real  estate.1' 

159.  Parties  holding  liens  on  undivided  interests. — The 
question  whether  parties  holding  liens  upon  an  undivided  part  of  the 
real  estate  are  proper  parties  is  not  well  settled.     It  has  been  held, 
however,  in  a  recent  case  in  this  state,  that  they  are  proper  parties.' 
In  some,  if  not  most  of  the  states,  the  question  has  been  directly  set- 
tled by  legislation  authorizing  the  joinder  of  such  lien-holders.J     But 
in  this  state  we  have  no  such  statutory  provision. 

In  the  case  of  Milligan  v.  Poole,  35  Ind.  64,  the  supreme  court  say 
such  a  lien-holder  is  a  proper  party,  and  that  he  will  not  be  bound  by 
the  judgment  if  not  made  a  party.  Washburn  on  Real  Property  is 
cited  as  authority  for  the  position. k  The  authority  is  in  point;  but  as 
all  of  the  authorities  cited  by  the  author  are  from  other  states,  and 
this  question  has  been  materially  changed  by  statute  in  most  of  the 
states,  it  must  have  but  little  weight.  It  is  evident  that  our  statute 
does  not  contemplate  the  joinder  of  any  persons  except  those  having 
some  estate  in  the  land. 

The  statute  provides:  "Sec.  1.  Any  person  holding  lands  as  joint 
tenant  or  tenant  in  common,  whether  in  his  own  right,  or  as  executor 
or  trustee,  may  compel  partition  thereof  in  the  manner  provided  in  this 
act.  An  administrator  or  executor  may  also  compel  partition  as  a  ten- 
ant in  common  or  joint  tenant  may  do,  whenever,  in  the  discharge  of 
his  duties  as  such,  it  shall  be  necessary  for  him  to  sell  the  estate  of  the 
deceased  therein." l 

(e)  Ditts  v.  Lonsdale,  49  Ind   521,  (g)  Gregory  v.  High,  29  Ind.  627. 
529;  Story's  Part,  \\  64,  80;  Parsons'  (h)  Pomeroy's  Remedies,  §  373. 
Part.  31;  Streckerw.  Conn,  90  Ind.  469.  ^i)  Clark  v.  Stevenson,  73  Ind.  489. 

(f)  Milligan   v.   Poole,  35    Ind.  64;  (j  )  Pomeroy's  Remedies, §375, note  1. 
Godfrey  v.  Godfrey,  17  Ind.  6;   Davis  (k)  W»shburn  on  Real  Prop.  585. 
v.  Davi«,  43  Ind  561;   Harlan  v.  Stout,  (1)  R.  S.  1881,  §  1186.' 

22  Ind.  488;  2  Estee's  PI.  and  Forms, 
324,  §  20. 


110  JOINDER   OF    PARTIES.  [CHAP. 

The  next  section  authorizes  such  tenant  to  petition  for  the  partition 
of  lands  owned  by  the  petitioner  and  others.™ 

The  statute  further  provides  that  the  proceedings,  practice,  and 
pleadings  shall  be  the  same  as  in  "  civil  suits.  "n 

These  are  all  the  provisions  of  the  statute  with  reference  to  parties. 

There  is  nothing  in  the  statute  indicating  who  should  be  made  par- 
ties defendant.  In  the  case  of  Milligan  v.  Poole,  the  question  whether 
a  lien-holder  was  a  proper  party  was  not  before  the  court,  and  what  is 
said  on  the  subject  is  mere  dictum.  There  two  parties  owned  the 
land  as  tenants  in  common.  One  of  the  parties  sold  his  interest  to 
third  parties,  executing  to  them  a  title  bond  and  putting  them  in 
possession. 

Thus,  as  to  one-half  of  the  land,  the  original  owner  held  the  legal  title, 
while  his  purchasers  were  the  owners  of  the  equitable  title  and  were  in 
possession.  Suit  was  brought  by  the  party  owning  the  other  half  of 
the  land,  for  partition,  making  the  parties  holding  both  the  legal  and 
equitable  title  defendants.  The  land,  not  being  susceptible  of  parti- 
tion, was  sold,  and  the  purchase-money  paid  into  court. 

The  sole  question  before  the  supreme  court  was,  how  the  one-half  of 
the  purchase-money  should  be  divided  between  the  holders  of  the  title 
bond,  who  had  paid  a  part  of  the  purchase-money,  and  the  party  from 
whom  they  had  purchased.  The  question  of  parties  was  not  before 
the  court,  and  what  was  said  by  the  court  as  to  the  effect  of  the  failure 
to  join  a  mere  lien-holder  as  a  defendant,  was  entirely  outside  of  the 
case. 

Mr.  Pomeroy,  in  his  wrork  on  Remedies,  lays  down  the  rule  that, 
where  the  action  is  simply  to  partition  the  laud  the  incumbrancers  are 
not  proper  parties,  but  where  the  object  is  to  cause  a  sale  of  the  land 
and  a  division  of  the  money  they  are  proper,  if  not  necessary  parties.0 

If  this  is  the  law  it  is  evident  that,  under  our  practice,  the  incum- 
brancers would  be  proper  parties  in  every  instance,  because  every  par- 
tition proceeding,  under  our  statute,  may  result  in  a  sale  of  the  prop- 
erty,'no  matter  whether  the  complaint  seeks  such  a  remedy  or  not. 
If  the  property  is  not  susceptible  of  partition  without  injury  to  the 
several  owners,  the  property  must  be  sold  and  the  purchase-money  di- 
vided. It  would  seem,  in  such  a  case,  to  be  consistent  with  the  liberal 
provisions  of  our  statute  as  to  parties,  that  the  incumbrancer  should  be 
made  a  party  in  order  to  transfer  his  lien  from  the  laud  itself  to  that 
portion  of  the  purchase-money  allotted  to  the  part  owner  against 
whose  interest  in  the  real  estate  he  holds  a  lien,  and  that  he  may  have 

(m)  R.  S.  1881,  §  1187.  (°)  Pomeroy's  Remedies,  §§  374,  375. 

(n)  R.  S.  1881,  §  1188. 


V.]  JOINDER   OF   PARTIES.  Ill 

an  opportunity  to  protect  his  interest.  It  is  well  settled  in  this  state 
that,  where  the  land  is  sold  in  a  partition  proceeding,  the  parties  take 
the  same  interest  in  the  purchase-money  that  they  held  in  the  land.p 

But,  in  order  that  the  lien  of  the  incunibrancer  may  be  transferred 
from  the  land  to  the  purchase-money,  it  would  seem  to  be  proper,  if 
not  absolutely  necessary,  that  he  should  be  made  a  party  to  the  action. 
Where  the  land  is  not  sold,  but  partitioned,  it  is  entirely  unnecessary 
that  the  incunibrancer  should  be  joined.  It  is  true  that  no  party  can 
be  bound  by  a  judgment  unless  he  is  a  party  to  the  suit  in  which  the 
judgment  is  rendered,  but  in  such  a  case  his  rights  would  not  be  af- 
fected by  the  judgment.  His  rights  are  the  same  after  that  they  were 
before  the  judgment  was  rendered,  whether  the  judgment  binds  him 
or  not.  His  mortgage  simply  covers  the  interest  owned  by  the  party 
against  whom  he  holds  the  lien.  Before  the  partition  his  mortgage  or 
other  lien  covers  an  undivided  interest,  subject  to  the  right  of  the  other 
owners  to  have  the  share  owned  by  him  set  off  in  a  body.  If  the 
mortgage  were  foreclosed  before  partition  the  undivided  interest  could 
be  set  off,  notwithstanding  the  mortgage  and  its  foreclosure,  and  if  the 
mortgage  were  foreclosed  after  the  partition,  whether  the  mortgagee 
was  a  party  to  the  partition  proceeding  or  not,  a  purchaser  under  the 
foreclosure  proceeding  would  only  take  the  interest  of  the  mortgagor 
in  the  whole  tract,  and  his  interest  in  the  whole  tract  is  that  part  of 
the  land  awarded  him  in  the  partition  proceeding. 

The  interest  of  the  lien-holder  is  not  adverse  to  the  petitioner,  and 
no  judgment  in  any  form  could  be  rendered  against  him. 

The  careful  pleader  will  make  parties  to  the  action  all  persons  hold- 
ing liens  upon  an  undivided  interest  in  the  land.  Those  who  hold  a 
lien  upon  the  whole  of  the  land  are  not  proper  parties,  and  should 
never  be  joined.  Nor  can  a  party  who  claims  to  be  the  owner  of  the 
whole  tract  of  land  be  admitted  as  a  party  on  his  own  application. q 

160.  Parties  laboring  under  legal  disabilities. — Where  a 
party  is  laboring  under  such  a  disability  as  would  constitute  a  cause  of 
defense  to  the  action,  this  is  no  excuse  for  not  joining  such  party  as  a  de- 
fendant wrhere  he  would  otherwise  be  a  necessary  party.  The  defense 
of  personal  disability,  such,  for  instance,  as  infancy,  is  one  that  may 
or  may  not  be  interposed,  and,  until  it  is,  the  party  is  as  much  a  nec- 
essary party  as  if  no  such  disability  existed. 

(p)  Milligan   v.  Pool,   35   Ind,   64;         (q)  Baker  v.  Riley,  16  Ind.  479. 
Applegate   v.  Edwards,   45   Ind.  329, 
334;  Clark  v.  Stevenson,  73  Ind.  489. 


112  JOINDER   OF   PARTIES.  [CHAP. 

161.  Where  the  state  is  interested. — But  the  rule  is  otherwise 
where  a  necessary  defendant  can  not  be  sued,  as  in  case  of  the  state/ 

There  the  action  should  proceed  as  if  the  state  were  not  a  party  to 
the  contract  sued  on,  or  otherwise  liable.  The  relief  must  be  sought 
solely  against  the  other  parties  liable. 

162.  In  actions  to  reinstate  lost  or  destroyed  papers  or 
records. — There  is  a  special  statute  authorizing  proceedings  to  rein- 
state papers  and  records  of  the  courts  of  this  state  that  have  been  lost 
or  destroyed.8    The  provisions  of  the  act  extend,  also,  to  all  plead- 
ings, papers,  wills  or  writs,  that  form  part  of  the  evidence  of  any  title 
or  interest  in  any  real  estate,  either  legal  or  equitable,  and  authorizes 
the  owner  of  such  interest  in  real  estate  to  bring  suit  to  reinstate  such 
papers  or  records.' 

Where  the  proceeding  is  instituted  for  the  purpose  of  reinstating 
papers  or  records  in  an  action  pending  or  disposed  of,  it  is  evident  that 
all  persons  who  were  parties  to  the  original  action  should  be  made 
parties.  Where  the  action  is  for  the  purpose  of  restoring  a  paper  or 
record  as  evidence  of  title  to  real  estate,  the  statute  provides  that  "  all 
persons  having  or  claiming  an  interest  in  such  real  estate  shall  be  made 
defendants." 

(r)  Shoemaker    v.    The     Board     of        (s)  R.  S.  1881,  §  1232. 
Comm'rs  of  Grant  County,  36  Ind.  1 75 ;         (t)  R.  S.  1881,  §§  1239,  1240. 
Orleans  Nav.  Co.  v.  Schooner  Amelia, 
12  Am.  Dec.  516,  and  note. 


VI.]  NEW  PARTIES — INTERPLEADER.  113 


CHAPTER  VI. 

NEW    PARTIES— INTERPLEADER. 

SECTION.  SECTION. 

163.  When  new  parties  may  be   sub-     170.  In  actions  to  recover  real  or  per- 

stituted.  sonal  property. 

164.  Death  of  party;   personal  repre- 

sentative substituted.  INTERPLEADER. 

165.  Under  the  decedents'  act.  171.  The  statute. 

166.  When  heirs  substituted.  172.  When  party  will   be  substituted 

167.  In  case  of  legal  disability.  by  interpleader. 

168.  When  party  transfers  his  interest.  173.  How  new  party  substituted. 

169.  When  complete  determination  of  174.  The  notice. 

controversy  can  not  be  had  with-     175.  When  original  party  will  be  dis- 
out  new  parties.  charged. 

163.  When  new  parties  may  be  substituted. — Necessary 
parties  to  an  action,  who  have  been  omitted  may  be  brought  in  after 
the  suit  is  commenced.  This  may  be  done  on  the  application  of  the 
plaintiff  or  of  the  defendants  already  joined,  or  of  the  party  who  has 
been  improperly  omitted,  or  by  order  of  the  court  without  any  appli- 
cation being  made  therefor. 

The  making  of  new  parties  is  governed  wholly  by  statute,  and  the 
right  to  bring  other  parties  before  the  court  is  not  limited  to  necessary 
parties.  If  they  are  shown  to  be  proper  parties,  they  may  be  permitted 
to  defend  on  their  own  application,  or  compelled  to  do  so  on  the  appli- 
cation of  other  parties  to  the  action. 

The  statute  provides:  "No  action  shall  abate  by  the  death  or  disa- 
bility of  a  party,  or  by  the  transfer  of  any  interest  therein,  if  the  cause 
of  action  survive  or  continue.  .  In  case  of  the  death  or  disability  of  a 
party,  the  court,  on  motion  or  supplemental  complaint,  at  any  time 
within  one  year,  or  on  supplemental  complaint  afterward,  may  allow 
the  action  to  be  continued  by  or  against  his  representative  or  successor 
in  interest.  In  case  of  any  other  transfer  of  interest,  the  action  shall 
be  continued  in  the  name  of  the  original  party,  or  the  court  may  al- 
low the  person  to  whom  the  transfer  is  made  to  be  substituted  in  the 
action."* 

(a)  R.  S.  1881,  §  271. 
8 


114  NEW  PARTIES — INTERPLEADER.  [CHAP. 

\ 

Strictly  speaking,  this  section  does  not  authorize  the  joinder  of  new 
parties,  as  the  interest  or  liability  represented  is  the  same,  and  the 
party  admitted  stands  in  the  place  of  the  old  party. 

The  section  authorizes  the  bringing  in  of  other  parties  in  three 
cases :  1.  Upon  the  death  of  a  party ;  2.  Upon  the  disability  of  a 
party ;  and  3.  Upon  the  assignment  by  a  party  of  his  interest  in  the 
action  to  some  person  not  a  party  to  the  suit. 

164.  Death  of  party ;  personal  representative  substituted. 
— In  case  of  the  death  of  either  a  plaintiff  or  defendant,  the  question 
whether  his  personal  representative  can  be  substituted  or  not  depends 
upon  whether  the  action  is  one  that  survives.  If  the  action  is  one  that 
does  not  survive,  the  action  terminates  with  the  death  of  either  the 
plaintiff  or  defendant,  and  his  personal  representative  can  not  be  sub- 
stituted.1' 

The  statute  provides  that  a  cause  of  action  arising  out  of  an  injury 
to  the  person  of  either  party,  except  in  cases  in  which  an  action  is 
given  for  an  injury  causing  the  death  of  any  person,  and  actions  for 
seduction,  false  imprisonment,  and  malicious  prosecution,  shall  not  sur- 
vive. "All  other  causes  of  action  survive,  and  may  be  brought  by  or 
against  the  representatives  of  the  deceased  party,  except  actions  for 
promises  to  marry.  "c 

Taking  these  two  statutes  together,  the  right  to  substitute  the  per- 
sonal representative  upon  the  death  of  either  party  would  exist  ia  all 
cases  except  those  arising  out  of  an  injury  to  the  person  of  either  party 
(which  includes  an  injury  to  the  character  merely  as  in  cases  of  libel 
or  slander),  actions  for  seduction,  false  imprisonment,  malicious  prose- 
cution, and  actions  for  promises  of  marriage. 

The  statute  expressly  excepts  cases  arising  out  of  injuries  causing 
the  death  of  a  party,  and  provides  in  express  terms  that  such  action 
shall  survive.  But  there  can  be  no  substitution  of  the  personal  repre- 
sentative in  this  class  of  actions,  so  far  as  the  plaintiff  is  concerned,  as 
the  cause  of  action  only  accrues  upon  his  death. 

If  the  statute  stood  alone,  without  having  received  a  different  con- 
struction by  the  supreme  court,  I  should  say  that  where  a  party  re- 
ceived an  injury  to  the  person  and  brought  his  action  for  damages 
therefor,  and  afterward  died  from  the  effects  of  the  injury,  that  his 
personal  representative  could  be  substituted  and  the  action  proceed  in 

(b)  Stout  v.  The  Indianapolis  and  Indianapolis  and  St.  Louis  K.  E.  Co.  tv 
St.  Louis  E.  E.  Co.,  41  Ind.  149 ;  The  Stout,  53  Ind.  143. 

(c)  E.  S.  1881,  §§  282,  283. 


VI.]  NEW  PARTIES — INTERPLEADER.  115 

his  name.     As  the  statute  was  construed  in  an  early  case  this  would 
be  true.d 

In  this  case  it  is  held  that  "  the  right  of  action  may  be  regarded  as  con- 
tinued by  tJie  statute  in  tlie  personal  representative  just  as  it  existed  in  Hie 
deceased" 

This  construction  would  clearly  authorize  the  personal  representative 
to  be  made  a  party.  But  it  has  been  held  in  a  later  case  that  the  ac- 
tion that  existed  in  the  party  injured  does  not  survive,  but  that  the 
statute  creates  a  new  and  independent  cause  of  action  growing  out  of 
the  death  of  the  party  injured,  and  the  original  cause  of  action  dies 
with  the  person.8 

With  this  construction  of  the  statute,  and  this  being  the  later  case, 
it  must  be  accepted  as  the  proper  construction,  there  can  be  no  new 
party  substituted  where  the  party  injured  dies,  but  the  present  action 
must  abate  and  a  new  one  be  brought  by  the  personal  representative. 
.  The  supreme  court  has  so  decided  in  a  late  case  in  which  the  plaint- 
iff died  after  the  cause  had  been  reversed  in  the  general  term  of  the 
superior  court,  and  was  appealed  by  an  administrator  to  the  supreme 
court.  It  was  held  that  the  action  died  with  the  person,  and  there- 
fore an  administrator  had  no  right  of  appeal/ 

While  the  last  case  cited  is  clearly  to  the  effect  that  the  action  abates 
by  the  death  of  the  party,  the  language  used  in  giving  a  construction 
to  the  statute  is  in  conflict  with  the  case  of  the  Jeffersonville  R.  R. 
Co.  v.  Swayne. 

The  court  say:  "The  action  of  Peter  Stout "  (the  deceased)  "was 
based  upon  the  common-law  liability  of  the  appellant,  while  the  pres- 
ent action  is  based  upon  the  statute ;  but  the  foundation  of  the  action, 
in  each  case,  was  the  injury  caused  by  the  negligence  of  the  appellant. 
The  death  of  Peter  Stout,  after  verdict  and  before  judgment,  caused 
the  action  to  abate.8  Upon  his  death  his  administrator  brought  the 
present  action.  We  think  the  causes  of  action  were  the  same. 
.  .  Our  statute  makes  the  administrator  the  representative  of  the 
deceased." 

The  case  of  the  Jeffersonville  R.  R.  Co.  v.  Swayne,  decided  in  ex- 
press terms  that  the  cause  of  action  is  not  the  same,  and  that  the  ad- 
ministrator does  not  represent  the  deceased,  but  acts  as  a  trustee  of  the 
parties  entitled  to  the  damages  recovered.  If  the  new  action  is  the 

(d)  Long  v.  Morrison,  14  Ind.  595.       Indianapolis  and  St.  Louis  R.  R.  Co.  v 

(e)  The  Jeffersonville   R.  R.  Co.  v.    Stout,  53  Ind.  143. 

Swayne,  26  Ind.  477,  484.  (g)  Citing  Stout  v.  I.  &  St.  L.  R.  R. 

(f )  Stout  v.  The  Indianapolis   and     Co,  41  Ind.  149. 
St.  Louis  R.  R.  Co.,  41  Ind.  149  ;  The 


116  NEW   PARTIES — INTERPLEADER.  [CHAP. 

same  as  the  other  there  is  no  reason  why  the  action  should  not  be  con- 
tinued in  the  name  of  the  administrator.  It  is  solely  upon  the  ground 
that  the  first  cause  of  action  dies  with  the  person,  and  that  the  cause 
of  action  given  by  the  statute  is  a  new  and  independent  one,  that  the 
necessity  of  bringing  a  new  action  instead  of  continuing  the  old  one 
can  be  founded.  The  question  presented  in  the  case  of  the  Indian- 
apolis &  St.  L.  R.  Co.  v.  Stout,  was  whether  a  deposition  taken  in  the 
action  brought  by  Stout  in  his  lifetime  could  be  used  in  the  new  action 
brought  by  his  administrator.  The  deposition  was  objected  to  on  the 
ground  that  it  was  taken  in  the  other  cause,  and  that  neither  the  cause 
of  action  nor  the  parties  were  the  same,  but  the  court  held  that  the 
cause  of  action  was  the  same,  and  therefore  the  deposition  was  prop- 
erly admitted.  Notwithstanding  this  reasoning  of  the  court,  however, 
on  this  point,  it  was  held  that  the  first  cause  of  action  abated,  and  an 
administrator  could  not  be  made  a  party. 

So  far  as  the  defendant  is  concerned,  his  death  would  terminate  the 
cause  of  action  brought  by  the  person  injured;  but  where  the  action  is 
brought  by  the  administrator  under  the  statute,  the  death  of  the  de- 
fendant does  not  abate  the  action,  and  his  administrator  may  be  sub- 
stituted as  the  new  party. 

Strictly  speaking,  actions  for  libel  or  slander  could  not  be  classed 
under  the  head  of  actions  for  injury  to  the  person ;  but  they  are  so 
considered,  so  that  the  administrator  of  either  party  could  not  be  made 
a  party  upon  his  death,  but  the  action  abates.11 

Actions  for  seduction  and  false  imprisonment  and  malicious  prosecu- 
tion survive,  and  may  be  prosecuted  in  the  name  of  the  personal  rep- 
resentative.1 

165.  Under  the  decedents'  act. — The  act  of  1881,  for  the  set- 
tlement of  decedents'  estates,  provides  that  "  no  action  shall  be  brought 
by  complaint  and  summons  against  the  executor  or  administrator  of  an 
estate  for  the  recovery  of  any  claim  against  the  decedent;  but  the 
holder  thereof,  whether  such  claim  be  due  or  not,  shall  file  a  succinct 
and  definite  statement  thereof  in  the  office  of  the  clerk  of  the  court  in 
which  the  estate  in  pending  ;"J  and  this  provision  is  applied  to  joint 
contracts.11  This  statute  and  the  revised  code  went  into  force  at  the 
same  time.  They  are  conflicting.  It  is  evidently  the  intention  of  the 
decedents'  act,  that  no  judgment  shall  be  taken  against  an  administra- 
tor or  executor,  on  a  complaint,  for  any  claim  against  the  decedent, 

(h)  Townshend  on  Slander,  §  299.  ( j)  R.  S.  1881,  §  2310. 

(i)  R.  S.  1881,  §  282.  (k)  R.  S.  1881,  %  2311,  2312. 


VI.]  NEW   PARTIES— INTERPLEADER.  117 

even  where  tne  cause  of  action  is  joint  and  the  decedent  is  only  a 
surety ; l  and  if  the  executor  or  administrator  could  not  be  joined  in  the 
first  instance,  for  the  same  reason  he  could  not  be  substituted  upon  the 
death  of  the  decedent.  This  provision  in  the  decedents'  act  is  a  step  in 
the  wrong  direction,  as  it  must  necessarily  multiply  the  number  of 
suits  to  be  brought  and  increase  litigation.  The  provision,  if  it  did  not 
conflict  with  the  code,  would  be  so  construed,  it  is  believed,  as  to  pre- 
vent the  substitution  of  the  executor  or  administrator ;  but  as  it  does 
not,  in  terms,  forbid  the  substitution,  but  applies  to  the  commencement 
of  actions,  and  the  code  expressly  provides  for  it,  the  substitution  should 
be  allowed. 

1 66.  When  heirs  substituted. — It  must  not  be  understood  that 
the  personal  representative  is  the  necessary  party  to  be  substituted  in 
every  case  upon  the  death  of  a  party.     If  the  action  is  one  that  must 
be  prosecuted  or  defended  by  the  personal  representatives  if  brought 
after  the  party's  death,  such  representative  is  the  proper  party  to  be 
substituted ;  but  if  the  action  is  one  that  must  be  prosecuted  by  or 
against  the  heirs  of  the  deceased,  they  should  be  substituted  as  the 
parties.     Where  both  the  personal  representatives  and  the  heirs  would 
be  necessary  parties,  they  must  both  be  substituted.1" 

167.  In  case  of  legal  disability. — Under  the  clause  of  the  stat- 
ute authorizing  the  joinder  or  substitution  of  new  parties  in  case  of 
disability,  it  would  seem  to  have  been  intended  that  the  statute  should 
apply  to  cases  where  the  disability  occurred  after  the  suit  was  brought. 
If  so,  it  would  not  apply  to  the  disability  of  infancy.    But  the  supreme 
court  has  held  that  a  next  friend  may  be  brought  in  after  the  action 
has  been  brought,  notwithstanding  the  provision  of  the  statute  that 
no  summons  shall  issue  where  the  action  is  brought  by  an  infant  until 
some  competent  and -responsible  person  shall  appear  as  next  friend.n 

168.  When   party  transfers   his   interest. — In  case  of  the 

transfer  of  his  interest  by  one  of  the  parties,  the  court  "  may  allow  the 
person  to  whom  the  transfer  is  made  to  be  substituted  in  the  action," 
but  the  court  is  not  required  to  do  so,  and  such  substitution  is  entirely 
unnecessary.  If  the  plaintiff  transfers  his  interest  during  the  pend- 
ency of  the  suit,  the  action  may,  nevertheless,  be  prosecuted  to  judg- 
ment in  his  name.0  A  purchaser  from  the  defendant  pendente  lite 

(1)  K.  S.  1881,  §  2313.  '   (n)  Greenman  v.  Cohee,  61  Ind.  201. 

(m)  Busk.  Prac.,  p.  57 ;  ante,  §§  132,  (o)  Harvey  v.  Myer,  9  Ind.  391; 
133,  134;  Benoit  v.  Schneider,  39  Ind.  Dearmond  v.  Dearmond,  12  Ind.  455; 
591.  Dearmond  r.  Dearmond.  10  Ind.  191; 

Jones  v.  Julian,  12  Ind.  274. 


118  NEW   PARTIES — INTERPLEADER.  [CHAP. 

takes  with  full  notice,  and  will  be  bound  by  the  judgment  the  same  as 
if  he  were  made  a  party.  P 

169.  When  complete  determination  of  controversy  can 
not  be  had  without  new  parties. — "  The  court  may  determine 
any  controversy  between  the  parties  before  it,  when  it  can  be  done 
without  prejudice  to  the  rights  of  others  or  by  saving  their  rights,  but 
when  a  complete  determination  of  the  controversy  can  not  be  had  without  Hie 
presence  of  other  parties,  the  court  must  cause  them  to  be  joined  as  proper 
parties"  q 

This  clause  of  the  section  of  the  statute  is  imperative,  and  applies 
directly  to  the  court,  whether  any  application  is  made  for  the  joinder 
of  such  new  parties  0r  not,  but  there  is  no  reason  why  either  party  may 
not  make  the  application,  and  if  the  court  finds  that  the  party  should 
be  brought  in,  the  order  must  be  made.  The  court  is  not  bound  to 
wait,  however,  for  one  of  the  parties  to  make  the  application.  If  the 
pleadings  disclose  the  fact  that  a  complete  determination  of  the  contro- 
versy can  not  be  had  Avithout  bringing  other  parties  before  the  court, 
the  statute  imperatively  requires  that  the  court  shall  cause  them  to  be 
joined.  The  statute  uses  the  term  proper  party,  but  it  is  evident  that 
this  section  only  requires  that  a  necessary  party  should  be  joined,  be- 
cause it  is  only  such  parties  whose  presence  is  necessary  to  a  complete 
determination  of  the  controversy/ 

The  new  party  can  only  be  brought  in  when  it  is  necessary  to  the 
settlement  of  the  controversy,  as  between  the  plaintiff  and  the  defend- 
ants. While  the  statute  authorizes  defendants,  when  before  the  court, 
to  settle  a  controversy  between  themselves,  growing  out  of  the  subject- 
matter  of  the  action,  new  parties  can  not  be  brought  in,  under  this 
statute,  for  any  such  purpose.8 

170.  In  actions  to  recover  real  or  personal  property. — The 
same  section  of  the  statute  provides  that,  "  when  in  an  action  for  the 
recovery  of  real  or  personal  property,  a  person  not  a  party  to  the  ac- 
tion, but  having  an  interest  in  the  subject  thereof,  makes  application 

(p)  Truitt  v.  Truitt,  38  Ind.  16;  (s)  Frear  r.  Bryan,  12  Ind.  343; 

Green  v.  "White,  7  Blkf.  242;  Freeman  Luark  v.  Malone,  34  Ind.  444;  Merrill 

on  Judgments,  §§  191,  192,  193,  194,  v.  Wells,  18  Ind.  171 ;  Scoby  v.  Finton. 

and  notes.  39  Ind.  275;  Newcomb  v.  Dunham,  27 

(q)  R.  S.  1881,  §  272.  Ind.  285;   Kemp  r.  Mitchell,  36  Ind. 

(r)  Clough  v.  Thomas,  53  Ind.  24;  249;  Hunter  v.  McLaughlin,  43  Ind. 

Pomeroy's  Kemedies,  $412,414;  ante,  38;  Summers  v.  Huston.  48  Ind.  228; 

§  118.  Clough  v.  Thomas,  53  Ind.  24. 


VI.]  NEW  PARTIES — INTERPLEADER.  119 

to  the  court  to  be  made  a  party,  it  may  order  him  to  be  made  a  party 
by  the  proper  amendment."' 

This  clause  of  the  statute  is  expressly  limited  to  actions  for  the  re- 
covery of  real  or  personal  property.  It  does  not  confine  the  right  to 
be  made  a  party  to  those  who  are  necessary.  If  necessary  parties,  the 
court  would  be  bound  to  cause  them  to  be  joined  under  the  first  clause 
of  the  section,  but  they  may,  under  this  provision  of  the  statute,  be 
admitted,  if  proper  parties.  They  must,  however,  to  be  proper  par- 
ties, have  some  interest  in  the  subject  of  the  action,  and  their  interest, 
if  they  ask  to  be  made  plaintiffs,  must  be  in  unity  with  the  interest  of 
the  plaintiffs  who  are  already  joined." 

If  they  ask  to  be  made  defendants,  their  interest  in  the  subject  of 
the  action  must  be  adverse  to  the  plaintiff.  And  not  being  necessary 
parties,  the  court  is  not  bound  to  admit  them,  but  may  do  so  in  its 
discretion.7 

INTERPLEADER. 

171.  The   statute. — "A  defendant  against   whom  an  action  is 
pending  upon  a  contract,  or  for  specific  real  or  personal  property,  may 
at  any  time  before  answer,  upon  affidavit  that  a  person  not  a  party  to 
the  action,  and,  without  collusion  with  him,  makes  against  him  a  de- 
mand for  the  same  debt  or  property,  upon  due  notice  to  such  person 
and  the  adverse  party,  apply  to  the  court  for  an  order  to  substitute 
such  person  in  his  place,  and  discharge  him  from  liability  to  either 
party  on  his  depositing  in  court  the  amount  of  the  debt,  or  delivering 
the  property  or  its  value  to  such  person  as  the  court  may  direct ;  and 
the  court  may,  in  its  discretion,  make  the  order."  w 

172.  When  party  will  be  substituted  by  interpleader.— 
This  section  is  intended  to  take  the  place  of  the  bill  of  interpleader  in 
equity.     The  steps  necessary  to  bring  about  the  substitution  of  the 
new  party  and  the  discharge  of  the  old  are  made  very  simple. 

The  right  to  ask  for  the  making  of  a  new  party  rests  with  the  de- 
fendant alone,  and  can  only  be  granted  upon  application.  The  court  is 
not  bound,  however,  to  grant  the  order  substituting  the  new  party  in 
any  case.  It  may  be  done  or  not,  at  the  discretion  of  the  court.  The 
right  is  only  given  in  three  classes  of  cases  :  1.  In  actions  on  contract ; 
2.  In  actions  for  specific  real  property ;  and,  3.  In  actions  for  specific 
personal  property.  The  substitution  could  not  be  made  in  every  action 
on  contract.  It  must  be  a  case  where  the  amount  due  upon  the  con- 

(t)  K.  S.  1881,  ?  272.  (v)  Pomeroy's  Remedies,  $  412,  413, 

(u)  K.  S.  1881,  §  262.  414,  415. 

(w)   R.  S.  1881,§27r,. 


120  NEW   PARTIES — INTERPLEADER.  [CHAP. 

tract  is  fixed  and  certain.  If  there  is  any  controversy  between  the 
original  parties  as  to  the  amount  due  upon  the  contract,  the  original 
defendant  could  not  be  discharged.  This  is  evident,  as  he  must,  before 
he  can  be  discharged,  pay  the  amount  due  upon  the  contract  into 
court. 

173.  How  new  party  substituted. — The  affidavit  required  must 
show:   1.  That  a  person  not  a  party  to  the  suit  makes  against  him  a 
demand  for  the  same  debt  or  property  in  controversy  ;  2.  That  there  is 
no  collusion  between  him  and  the  party  making  such  demand.    The  af- 
fidavit should  be  filed  in  the  cause,  and  must  be  filed  before  answer.(l) 

Upon  the  filing  of  the  affidavit  notice  must  be  given  to  the  plaintiff 
in  the  action,  and  the  person  sought  to  be  substituted  as  a  defendant, 
that  such  affidavit  has  been  filed,  and  that  at  a  time  named  in  the  no- 
tice the  defendant  will  ask  for  an  order  substituting  the  third  party  as 
defendant,  and  discharging  the  original  defendant  upon  his  paying  the 
money  sued  for  into  court,  or  delivering  the  property  sued  for  to  such 
person  as  the  court  may  designate. 

174.  The  notice. — The  statute  is  extremely  indefinite  as  to  the 
kind  of  notice  and  the  time  it  shall  be  given.     It  only  requires  that 
reasonable  notice  shall  be  given.     The  question  whether  the  time  for 
which  the  notice  is  given  is  reasonable  or  not  must  be  determined  by 
the  court,  and  must  necessarily  depend  upon  the  circumstances  of  each 
case.     The   party  making   the  application   must  give  the  necessary 
notice. 

175.  When  original  party  will  be  discharged. — The  original 
defendant  can  only  be  discharged  upon  paying  the  money  into  court 
or  delivering  the  property  to  such  person  as  may  be  designated  by  the 
court.     The  money  need  not  be  paid  or  the  property  delivered  at  the 
time  the  affidavit  is  filed,  but  it  must  be  at  the  time  the  application  i? 
made.     If  the  action  is  for  property  that  can  not  be  brought  into  court 
the  order  substituting  the  new  party  should  designate  some  person  to 
whom  the  property  is  to  be  delivered,  and  order  the  discharge  of  the 
original  party  and  the  substitution  of  the  new  upon  the  delivery  of  the 
property  to  such  person. 

(1)  For  forms  of  complaint,  and  affidavit  for  interpleader,  see  vol.  3,  pp.  181, 
332,  333. 


VIL]  CIVIL  ACTIONS.  121 


CHAPTER  VII. 
CIVIL  ACTIONS. 

SECTION.  SECTION 

176.  The  statute.  178.  The  authorities. 

177.  Construction  of  the  statute. 

176.  The  statute. — Having  considered  the  question  of  parties,  we 
pass  to  that  of  actions.     The  first  section  of  the  code  provides  :  "  Sec- 
tion 249.  There  shall  be  no  distinction  in  pleading  and  practice  be- 
tween actions  at  law  and  suits  in  equity,  and  there  shall  be  but  one 
form  of  action  for  the  enforcement  or  protection  of  private  rights  and 
the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil 
action." a 

This  section  of  the  code  was  amended  by  the  revision  of  1881.  As 
it  originally  stood,  it  expressly  abolished  all  distinction  between  actions 
at  law  and  suits  in  equity.  It  now  provides  that  there  shall  be  no  dis- 
tinction between  the  two.  The  section  is  the  same,  but  its  meaning  is 
expressed  in  different  words.  As  the  section  had  stood  for  nearly  thirty 
years,  and  its  construction  had  been  considered  in  a  multitude  of  cases, 
the  change  in  the  wording  of  the  section  may  be  considered  as  of  doubt- 
ful propriety. 

177.  Construction  of  the  statute. — This  section  may  properly 
be  divided  into  two  parts.     The  first  abolishes  all  distinction  in  prac- 
tice between  actions  at  law  and  suits  in  equity.     This  clause  has  noth- 
ing to  do  with  such  proceedings  in  court  as  ai'e  denominated  "  special 
proceedings."    It  has  been  given  its  full  force  by  the  courts  of  the 
state,  and  all  actions  that  were  before  its  enactment,  either  common- 
law  actions  or  suits  in  equity,  are  held  to  be  the  same  under  the  statute, 
so  far  as  practice  and  pleading  are  concerned,  all  distinctions  between 
them  being  abolished. b 

The  statute  does  not  affect  the  remedy  in  either  common-law  or 
equitable  actions,  but  only  the  form  of  the  pleading  by  which  the 
remedy  shall  be  obtained.  The  same  facts  that  would  have  entitled  a 

(a)  R.  S.  1881,  §  249.  Indiana,  etc.,  R.  R.  Co.  r.  Williams,  22 

(b)  Scott  v.  Crawford.  12  Ind.  410;     Ind.  198;    Ewing   v.  Ewin^,    24   Ind. 
Shaw    v.   Gallager,  8   Ind.  2-32;    The    468;  Troost  v.  Davis,  31  Ind.  34,  38. 


122  CIVIL  ACTIONS.  [CHAP. 

plaintiff  to  recover  at  common  law  will  entitle  him  to  recover  under  the 
code,  but,  as  we  shall  see  when  we  come  to  consider  the  question  of 
pleadings,  his  remedy  does  not  depend  upon  the/or»i  of  his  complaint  or 
the  name  by  which  his  action  is  called.  He  is  entitled  to  just  such 
relief  as  the  facts  stated  in  his  complaint  entitle  him,  whether  the  re- 
lief be  legal  or  equitable.0 

The  second  clause  of  the  section  has  given  rise  to  much  confusion. 
It  provides  that  "  there  shall  be  in  this  state  hereafter  but  one  form  of 
action  for  the  enforcement  or  protection  of  private  rights  and  the  redress 
of  private  wrongs,  which  shall  be  denominated  a  civil  action" 

This  language  is  in  no  way  limited,  like  the  first  part  of  the  section, 
to  common -law  actions  and  suits  in  equity,  but  applies  equally  to 
"  special  proceedings,"  whatever  they  may  be.  So  far  as  the  mere 
question  of  pleading  is  concerned  the  statute  has  been  liberally  con- 
strued in  practice,  but  in  determining  the  rights  of  parties  to  demand 
a  jury,  or  a  change  of  venue,  or  to  recover  costs,  rights  that  are  only 
given  in  "  civil  actions,"  the  courts  of  this  state  have  not  given  the 
words  of  the  statute  this  liberal  construction.  It  would  seem  clear 
from  the  language  used  that  there  could  be  but  two  forms  of  action, 
civil  and  criminal,  and  that  all  such  actions  as  were  not  criminal  must 
necessarily  fall  under  the  denomination,  "civil  action,"  but  the  su- 
preme court  has  held  otherwise. 

In  the  case  of  the  Lake  Erie,  Wabash,  and  St.  Louis  R.  Co.  v. 
Heath,  9  Ind.  558,  the  court,  after  quoting  the  provision  of  the  con- 
stitution "  that  in  all  civil  cases  the  right  of  trial  by  jury  shall  re- 
main inviolate,"  say:  "The  above  provision  in  our  own  constitution 
applies  in  terms  but  to  civil  cases.  WJiat  then,  ivithin  its  meaning  is  a  civil 
case?  Not  every  case  which  is  not  a  criminal  case  is  a  civil  one.  'Civil 
case'  had  a  definition,  a  meaning  at  common  law  when  the  early  constitutions 
of  this  country  were  formed;  and  it  lias  been  held  that  the  term  was  used  in 
those  constitutions  in  the  common-law  sensed 

"  It  may  be  fairly  argued  that  the  term  should  be  construed  in  our 
constitution  to  embrace  such  as  were  treated  as  civil  cases  in  this  state 
when  the  constitution  was  adopted,  and  such  has  been  the  rule  acted 
upon  in  some  of  the  states.  But  this  rule  would  not  extend  the  mean- 
ing of  the  term  so  as  to  embrace  legal  proceedings  in  all  cases,  except 
criminal  .  .  .  Chancery  cases,  it  should  be  observed,  are  in  the 

(c)  Post,  §g  341,  351.  45  ;  Gold  v.  The  Vermont  Central,  etc., 

(d)  Citing  Millyard  v.  Hamilton.  7  Co.,  19  Yt.  478:  Wells  v.  Caldwell,  1 
Ohio  (pt.  2),  112;    Livingston  v.  The  A.  K.    Marsh.   (Ky.)    441;    Harris   v. 
Mayor,  etc.,  8  Wend.  85;  Beekman  v.  Wood,  6  Mon.  641. 

The  Saratoga,  etc.,  K.  R.  Co.,  3  Paige, 


vn.]  CIVIL  ACTIONS.  123 

system  of  practice  provided  for  by  the  new  constitution,  e'xpressly 
merged  in  the  class  of  civil  actions."8 

In  most  of  the  numerous  cases  cited  in  the  foot  note,  the  question 
as  to  what  was  meant  by  the  term  "civil  action"  arose  under  the 
constitutional  provision  that  the  right  of  trial  by  jury  shall  remain  in-" 
violate  in  civil  cases.  The  question  as  to  the  effect  of  the  statute  in 
extending  the  meaning  of  the  term  was  not  in  question  and  not  con- 
sidered. The  supreme  court  has  uniformly  held  that  to  deny  a  party 
fthe  right  to  a  trial  by  jury  in  a  proceeding  that  was  not  a  civil  case  at 
the  time  the  constitution  was  adopted,  was  not  a  violation  of  the  con- 
stitution. The  reason  given  is  that  in  guaranteeing  the  right  of  trial 
by  jury  in  civil  cases,  the  constitution  must  be  construed  to  mean  only 
such  as  were  civil  cases  at  the  time  of  its  adoption,  and  not  such  as 
might  be  made  so  afterwards  by  statute.  The  legislature  has  the  right, 
undoubtedly,  to  extend  the  meaning  of  the  term  civil  actions  so  as  to 
include  such  as  were  not  so  denominated  at  the  time  the  constitution 
was  adopted,  but  the  position  taken  is  that  the  enlargement  of  the 
meaning  of  the  term  used  by  the  constitution  can  not  have  the  effect 
to  enlarge  or  extend  the  meaning  of  the  constitution. 

In  Allen  v.  Anderson,  57  Ind.  388,  in  speaking  of  this  constitutional 
provision,  the  supreme  court  say: 

"  This  provision  of  the  constitution  was  adopted  in  reference  to  the 
common-law  right  of  trial  by  jury,  as  the  language  plainly  imports, 
namely,  that  the  right  shall  remain  inviolate ;  that  is,  continue  as  it 
was.  The  words,  '  in  all  civil  actions,'  mean  in  all  civil  actions  at 
the  common  law,  as  debt,  covenant,  assumpsit,  trover,  replevin,  tres- 
pass, action  on  the  case,  etc.  In  chancery  cases,  or  suits  in  equity,  to 
which  the  present  action  would  have  belonged  at  the  time  the  constitu- 
tion was  adopted,  and  before  our  present  code  of  procedure  was  enacted, 
trial  by  jury,  as  a  right,  did  not  exist.  Issues  of  fact,  in  such  cases, 
were  sometimes  sent  to  a  jury  for  trial,  to  inform  the  conscience  of  the 
chancellor,  as  the  legal  phrase  ran ;  but  trial  by  jury,  before  the  chan- 
cellor, was  not  a  right  that  either  party  could  demand.  There  are 

(e)  The  Lake  Erie,  etc.,  K.  R.  Co.  v.  kett,  26  Ind.  53;  The  Evansville,  etc., 

Heath,  9  Ind.  558;  Dronberger  v.  Reed,  R.  R.  Co.  v.  Miller,  30  Ind.  209;  Reil- 

11  Ind.  420;  Clnm  v.  Dunham,  14  Ind.  ley  v.  Cavanaugh,  32  Ind.  214 ;  Gamer 

263;  Shaw  v.  Kent,  11  Ind.  80;  Knox  v.  Gordon,  41  Ind.  92, 101 ;  Musselman 

•p.  Fesler,  17  Ind.  234;  Zimmerman  v.  v.  Musselman,  44  Ind.  106;    Allen   v. 

Murchland,  23   Ind.  474;    Dillman  v.  Anderson,   57   Ind.   388;    Hopkins  v. 

Cox,  23  Ind.  440;  Baker  v.  Gordon,  23  The   Greensburg,    etc.,  Turnpike  Co., 

Ind.  204,   209;    Ewing  v.  Ewing,   24  4*3   Ind.  187;    Hymes  v.  Aydelott,  26 

Ind. 468;  Morse  v.  Morse,  25  Ind.  156;  Ind.  431;   Busk.  Prac.  117;   Ex  parte 

The  Norristown  Turnpike  Co.  v.  Bur-  "Walls,  73  Ind.  95. 


CIVIL  ACTIONS.  [CHAP, 

many  cases,  of  course,  besides  common-law  civil  cases,  in  which  the 
right  of  trial  by  jury  is  granted  by  statute,  but  the  case  before  us  is 
not  of  that  class." 

It  is  not  the  intention  now  to  consider  the  right  of  trial  by  jury  far- 
ther than  is  necessary  in  the  attempt  to  arrive  at  the  meaning  of  the 
terra  "  civijjiction/'  It  is  clearly  established  that  the  term  used  iii 
the  constitution  is  the  common-law  civil  action,  but  it  is  evident  enough 
that  the  constitution  means  one  thing  and  the  statute  another.  It  can 
not  be  said  that  the  statute,  in  using  the  term  "  civil  action,"  meaus 
the  common-law  civil  action,  for  this  would  deprive  the  statute  of  all 
force.  The  very  object  of  the  statute,  expressed  in  plain  and  unam- 
biguous words,  was  to  include  within  the  term  "  civil  action"  every 
form  of  action  "for  the  enforcement  or  protection  of  private  rights,  and 
the  redress  of  private  wrongs."  It  would  be  difficult  to  conceive  of  an 
action  that  would  not  fall  within  this  definition  of  a  civil  action.  If 
the  party  failed  to  show  a  right  to  be  enforced,  or  a  wrong  to  be  re- 
dressed, he  would  have  no  right  of  action,  legal,  equitable,  or  special, 
and  could  not  recover  in  any  form.  If  he  has  any  right  of  action,  no 
matter  what,  it  must  fall  within  the  statutory  definition  of  a  "  civil 
action."  It  is  claimed  that  the  statute  does  not  include  in  the  term 
"  civil  action"  what  were  known  before  the  enactment  of  the  code  as 
"  special  proceedings."  This  may  be  regarded  as  established,  so  far  as 
the  constitution  is  concerned,  but  it  is  not  true  of  the  statute.  The  con- 
stitution does  not  include  suits  in  equity  any  more  than  it  does  special 
proceedings/ 

But  it  would  hardly  be  contended  that  suits  in  equity  are  not  in- 
cluded in  the  statutory  definition  of  the  term  "  civil  action." 

In  some  of  the  decided  cases  in  this  state  the  difference  between  the 
constitutional  and  statutory  civil  action,  that  so  clearly  exists,  has  been 
entirely  overlooked. 

In  the  case  of  Garner  v.  Gordon,  41  Ind.  92,  it  is  said :  "  The  first 
question  presented  for  our  decision  is,  was  the  appellant  entitled  to  a 
change  of  venue?  The  solution  of  this  question  depends  upon  whether 
the  proceeding  by  habeas  corpus  is  a  civil  proceeding  within  the  meaning  of 
section  207  (2  G.  &  H.  154).  That  section  gives  a  right  to  a  change  of 
venue  of  any '  civil  action.'  It  was  held  by  this  court,  in  Baker  v.  Gordon, 
23  Ind.  204,  that  a  proceeding  by  habeas  corpus  is  not  a  civil  case  within 
the  meaning  of  section  20  of  the  bill  of  rights,  and  that,  consequently, 
such  proceeding  had  to  be  tried  by  the  court  and  not  by  a  jury.  We 
are  inclined  to  adhere  to  such  ruling.  We  think  it  is  equally  dear  tiiat 

(f)  Allen  v.  Anderson,  57  Ind.  388;  Hopkins  r.  The  Greensburg,  etc.,  Tp. 
Co.,  46  Ind.  187,  194. 


VII.]  CIVIL  ACTIONS.  125 

the  proceeding  under  consideration  is  not  a  civil  action  within  the  meaning 
of  the  above  section  of  tlie  code  ivhich  gives  the  right  to  a  cliange  of  venue." 

It  was  held  in  the  same  case,  for  the  same  reason,  that  there  Avas 
no  error  in  refusing  the  appellant  a  jury. 

In  order  to  show  that  the  court  Avas  wrong  in  its  ruling  that  a  pro- 
ceeding by  habeas  coiyms  is  not  a  civil  action  "  within  the  meaning  of  the 
code"  it  is  only  necessary  to  call  attention  to  the  reason  given,  in  other 
cases,  by  the  same  court,  for  holding  that  the  constitution  means  a 
common-law  civil  action.  The  reason  given  is  that  at  the  time  the  con- 
stitution was  adopted  the  term  civil  action  had  a  fixed  meaning,  and 
the  constitution  must  be  construed  with  reference  to  that  meaning. 
The  same  reason  applied  to  the  code  proves  that  the  meaning  there  in- 
tended was  the  meaning  given  the  term  by  the  statute.  The  great 
difficulty  has  been  that  the  code  has  not,  in  many  cases,  been  con- 
sidered and  treated  as  one  entire  system,  but  the  particular  section  in 
question  has  been  considered  alone.  If  the  section  granting  changes 
of  venue  in  civil  cases  were  to  be  construed  alone  in  connection  with 
the  constitution,  the  conclusion  reached  in  this  case  would' be  supported 
by  reason  and  authority ;  but  it  should  not  be  so  treated. 

The  section  authorizing  a  change  of  venue  in  civil  actions  must  be  un- 
derstood to  mean  the  civil  action  as  defined  in  the  code  of  which  it 
forms  a  part/1)  There  is  absolutely  no  reason  for  holding  that  this  sec- 
tion means  a  common-law  civil  action  when  a  preceding  section  abol- 
ishes the  distinction  between  such  civil  action  and  suits  in  equity,  and 
brings  within  the  term  civil  action  all  actions  for  the  "  enforcement  or 
protection  of  private  rights  or  the  redress  of  private  wrongs."  Can  it 
be  that  a  proceeding  by  Jiabeas  corpus  is  neither  an  action  for  the  en- 
forcement or  protection  of  a  private  right  nor  the  redress  of  a  private 
wrong?  If  it  is,  it  is  a  civil  action  within  the  meaning  of  the  first 
section  of  the  code,  and  the  succeeding  sections  in  speaking  of  a  civil 
action  must  mean  the  civil  action  as  defined  in  the  code,  unless  a  dif- 
ferent meaning  is  expressed/1)  The  reasonings  of  the  cases  fixing  the 
meaning  of  the  constitution  are  clearly  to  this  effect. g 

It  seems  clear  that  cases  holding  that  the  term  civil  action  as  used  in 
the  code  means  the  common-law  civil  action,  have  overlooked  entirely 
the  object  and  purpose  of  the  code,  and  are  in  violation  of  its  puiin 
terms.  The  case  quoted  from  is  not  the  only  one,  however,  in  which 
the  same  position  is  taken. h 

(g)  The  Lake  Erie,  etc.,  K.  K.  Co.  v.  (I)  Since  the  text  was  written  it  has 

Heath,  9  Ind.  558;    The   Norristown,  been  so  decided  by  the  Supreme  Court, 

etc.,  Turnpike  Co  v.  Burkett,  26  Ind.  Powell  v.  Powell,  104  Ind.  18;  Evans 

63,  61;   Cooley's  Const.  Lim.  74,  75,  76;  v.  Evans,  105  Ind.  204;  Bass  v.  Elliott, 

Smith  Com.  630,  §  482.  105  Ind.  517;  Anderson  v.  Caldwell,  91 

(h)   Ewing  v.  Ewing,   24   Ind.  468;  Ind.  451. 
Musselman  v.  Musselman,  44  Ind.  106, 
111;  Knox  v.  Fesler,  17  Ind.  254. 


126  CIVIL  ACTIONS.  [CHAP. 

In  some  of  the  cases  special  proceedings  are  spoken  of,  and  it  is  held 
that  such  proceedings  are  not  governed  by  the  code.  The  only  reason 
that  can  be  given  for  designating  any  judicial  proceeding  as  a  special 
proceeding  is  that  the  right  of  action  is  given  by  a  special  statute,  and 
not  by  the  code.  No  such  thing  is  known  in  the  code  as  a  "  special 
proceeding."  If  what  might  have  been  called  special  proceedings  be- 
fore the  adoption  of  the  code  are  not  included  in  the  statutory  defini- 
tion of  a  civil  action,  there  is  no  rule  of  pleading  or  practice  that  can 
be  applied  to  them.  Our  practice  and  pleading  are  governed  exclu- 
sively by  the  code,  and  the  statute  affords  no  rules  of  practice  or 
pleading  in  special  proceedings. 

Mr.  Bicknell,  in  his  work  on  Indiana  Practice,  says:  "Although 
the  code  establishes  a  single  form  of  action,  yet  certain  '  special  pro- 
ceedings '  are  authorized  by  the  code  which  are  not  regarded  as  civil 
actions."' 

The  author  does  not  attempt  to  show  what  are  special  proceedings 
or  how  they  are  authorized  by  the  code.  The  only  provision  in  the 
code,  as  it  then  stood,  relating  to  special  proceedings,  was  that  "  the 
party  procuring  a  special  proceeding  shall  be  known  as  the  plaintiff,  and 
the  adverse  party  as  the  defendant.  "J 

The  learned  author  says  this  would  be  superfluous  if  special  proceed- 
ings were  civil  actions,  which  is  undoubtedly  true.  It  was  superfluous 
because  the  section  itself  did  not  authorize  a  special  proceeding,  and 
there  is  no  other  provision  of  the  code  that  authorizes  or  defines  any 
such  proceeding,  or  that  has  any  connection  with  this  section  in  any 
way.  This  was  the  only  mention  that  was  made  of  a  special  proceed- 
ing in  the  code,  and  this  section  is  repealed  by  the  act  of  1881  revising 
the  code. 

I  have  attempted  to  show  that  the  statutory  definition  of  a  civil  ac- 
tion must  cover  every  conceivable  cause  of  action  to  which  a  party 
could  become  entitled,  hence  there  would  be  no  room  or  occasion  for  a 
special  proceeding,  and  I  believe  none  is  authorized  or  was  ever  intended 
by  the  code. 

The  New  York  code  differs  from  ours  in  this  respect.  It  defines  a 
special  proceeding.  After  giving  the  definition  of  an  "  action,"  as  set 
out  in  the  code  of  that  state,  a  special  proceeding  is  defined  to  be 
"  every  other  prosecution."  k 

A  very  comprehensive  definition,  if  the  definition  of  a  civil  action 
did  not  cover  every  kind  of  civil  remedy.  It  is  evident  that  the 
framers  of  the  Indiana  code  understood  the  definition  of  a  civil  action 

(i)  Bicknell's  Pr.,  p.  5.  (k)  N.  Y.  Code,  g  3333,  3334. 

(j)  2  R.  S.  1876,  p.  281,  §682. 


VII.]  CIVIL  ACTIONS.  127 

to  be  broad  enough  to  cover  all  remedies,  as  the  section  relating  to 
special  proceedings  is  omitted  in  adopting  the  New  York  code.  Notwith- 
standing the  New  York  code  defines  a  special  proceeding,  perhaps  to 
cover  a  possible  case,  it,  in  the  next  section,  provides  that  "actions  are 
of  two  kinds,  civil  and  criminal."  Section  3336  defines  a  criminal  ac- 
tion, and  section  3337  provides  that  "  every  other  is  a  civil  action." ' 

One  might  very  well  ask  what  has  become  of  the  special  proceeding 
under  these  two  definitions  of  criminal  and  civil  actions. 

None  of  these  definitions  are  given  in  the  Indiana  code.  The  whole 
tenor  of  the  code  shows  an  intention  to  include  in  the  term  civil  action 
every  action  not  criminal.  The  right  to  a  change  of  venue  is  given  in 
civil  cases. m  And  the  right  to  recover  cost." 

And  the  right  of  appeal  under  the  old  code.0 

The  right  to  arrest  a  defendant  is  authorized  in  civil  actions. p 

And  the  right  of  attachment  under  the  old  code  was  given  in  an 
"  action. "<! 

And  the  right  to  summon    witnesses  is  given  in  "  the  action. "r 

The  article  authorizing  the  impaneling  of  a  jury  applied  under  the 
old  code  to  "civil  actions;"3  but  it  was  provided  that,  "issues  of  fact 
mn*t  be  tried  by  a  jury  unless  a  jury  trial  is  waived"1 

Trials  were  only  regulated  in  "  actions." u 

The  right  to  prosecute  or  defend  in  person  or  by  attorney  is  only 
given  in  "  civil  actions."7 

Where  the  term  "  civil  action  "  or  "  action"  is  thus  used  in  the  code, 
it  must  be  construed  to  mean  the  civil  action  defined  by  the  code.  The 
code,  as  revised,  does  not  contain  the  same  phraseology  in  some  of  the 
sections  referred  to,  but  there  is  nothing  to  indicate  that  any  of  these 
provisions  apply  to  any  other  than  the  statutory  civil  action.  There  is 
but  one  instance  where  an  intention  is  shown  to  provide  for  any 
remedy  not  included  in  the  term  civil  action.  It  is  provided  that, 
"  the  writ  heretofore  known  as  the  writ  of  ad  quod  damnum  shall  here- 
after be  known  as  the  writ  of  assessment  of  damages,™  in  which  it 
is  provided  that,  "  costs  shall  be  awarded  in  all  these  cases  as  in  civil 
actions."  * 

(1)  N.  Y.  Code,  gg  3335,  3336,  3337.  (s)  2  K.  S.  1876,  §  307. 

(m)  R.  S.  1881,  §  412.      ,  (t)  2  E.  S.  1876,  p.  164,  §  320. 

(n)  R.  S.  1881,  \  590;  Knox  v.  Fes-  (u)  2  R.  S  1876,  p.  162,  §  315;  R.  S. 
ler,  17  Ind.  254.  1881,  §  516. 

(o)  2  R.  S.  1876,  p.  238,  §  550.  '  (v)   R.  S.  1881,  §  961. 

(p)  R.  S.  1881,  §  856.  (w)  R.  S.  1881,  §  746. 

(q)  2  R.  S.  1876,  p.  98,  §  156.  (x)  R  S  1881,  |  912. 
(r)  R.  S.  1881,  §484- 


128  CIVIL  ACTIONS.  [CHAP. 

The  uncertainty  of  the  code  as  to  what  is  a  special  proceeding  or 
whether  such  a  proceeding  exists  has  not  been  removed  by  the  supreme 
court.  The  question  whether  different  proceedings  were  civil  actions 
or  not  have  been  considered,  as  we  have  seen,  but  where  they  ai-e  held 
not  to  be  civil  actions,  we  are  not  informed,  either  by  statute  or  by  the 
adjudicated  cases,  what  they  are. 

178.  The  authorities. — In  the  case  of  Shaw  v.  Gallagher,  8  Ind. 
252,  the  court  say:  "A  proceeding  in  court  by  confession  of  judgment 
is  for  ike  enforcement  of  a  private  right,  and  is,  consequently,  by  virtue 
of  section  1,  p.  27,  2  R.  S.,  an  action  in  the  courts  of  Indiana.  The 
courts  in  this 'state  have,  by  statute,  jurisdiction  in  all  actions,  suits, 
and  cases, — terms  used  in  the  statute  synonymously  or  nearly  so.  If 
there  is  some  proceeding  not  embraced  by  those  terms,  by  wJiat  statute  has  any 
court  jurisdiction?"7 

In  French  v.  Lighty,  9  Ind.  475,  it  is  held  that  a  proceeding  to  con- 
test an  election  is  not  a  civil  action,  "but  simply  ivhat  it  is  named — tfie 
contesting  of  an  election." 

In  Knox  v.  Fesler,  17  Ind.  254,  it  is  held,  in  express  terms,  that  a 
proceeding  to  contest  an  election  is  a  "  special  proceeding." 

The  case  of  Baker  v.  Gordon  is  as  comprehensive  and  satisfactory  as 
that  of  French  v.  Lighty ;  and,  following  that  case,  it  is  held  that  a 
proceeding  by  writ  of  habeas  corpus  is  just  what  it  is  called,  "  the  writ 
of  habeas  corpus."2 

Under  the  statute  of  1843,  it  was  held  that  a  proceeding  to  remove 
or  suspend  an  attorney  was  not  a  civil  action,*  but  such  proceeding  is 
authorized  and  regulated  by  the  code,  and  is  a  civil  action. b 

Actions  for  the  partition  of  real  estate  are  civil  actions.0 

Notwithstanding  the  supreme  court  has  held  a  partition  proceeding 
to  be  a  civil  action,  a  late  amendment  to  the  act  providing  for  the  par- 
tition of  real  estate,  provides  that  "  the  proceedings,  practice,  and 
pleadings  shall  be  the  same  as  in  civil  suits,  except  as  otherwise  pro- 
vided in  this  act."d 

In  Ewing  v.  Ewing,  24  Ind.  468,  it  is  held  that  a  divorce  suit  is 
"  so  far  a  special  proceeding  as  to  allow  all  the  provisions  of  the  divorce 
act  to  have  their  full  force  and  effect  unaffected  by  the  code." e 

But  in  Hedrick  v.  Hedrick,  28  Ind.  291,  it  was  held  that  there  might 

(y)  Bicknell's   Pr.,  p.  5:    Marsh  v.  Ex  parte  Smith,  28  Ind.  47;  Ex  parte 

Sherman,  12  Ind.  358.  Tripp,  66  Ind.  581 ;  Ex  parte  Walls,  64 

(z)  Baker  v.  Gordon,  23  Ind.  204.  Ind.  461. 

(a)  Ex  parte  Robinson,  3  Ind.  52.  (c)  Kyle  v.  Kyle,  55  Ind.  387. 

(b)  Keilley  v.  Cavanaugh,   32   Ind.  (d)  K.  S.  1881,  g  1188. 

214;  K.  S.  1881,  $  842,  843,  844,  845;        (e)  Morse  v.  Morse,  25  Ind.  156. 


vn.]  CIVIL  ACTIONS.  129 

be  a  judgment  for  costs  in  a  divorce  case ;  and  it  has  been  expressly 
held  that  neither  party  can  recover  judgment  for  costs  in  any  but  a 
civil  case.f 

The  statute  on  the  subject  of  divorce  did  not  authorize  a  judgment 
for  costs. g 

So  it  is  a  civil  action,  so  far  as  to  authorize  a  judgment  for  cost 
under  the  general  statute,  which  applies,  as  I  have  shown  already,  to 
civil  actions  exclusively.(l) 

In  the  case  of  the  Evansville,  etc.,  R.  R.  Co.  v.  Miller,  it  was 
held  that  a  "proceeding  to  condemn  laud  for  public  use"  was  not  a 
civil  action. 

The  act  under  which  the  proceeding  was  commenced  was  local,  and 
passed  in  1849.  It  was  provided  that  the  court  should  proceed,  "  act- 
ing and  sitting  as  a  court  of  chancery."  This  was  before  the  enact- 
ment of  the  code. 

Now,  what  were  chancery  cases  or  "  suits  in  equity,"  are  civil  cases. 
About  this  there  can  be  no  controversy.  The  difficulty  has  been  to 
apply  the  rules  to  such  as  were  neither  common-law  civil  actions,  nor 
suits  in  equity,  but  special  proceedings.  So  far  as  the  question  of 
pleading  and  practice  is  concerned,  in  the  mere  preparation  of  a  case 
for  trial,  it  is  of  but  little  practical  importance  whether  a  judicial  pro- 
ceeding is  a  civil  action  or  a  special  proceeding.  The  rules  of  plead- 
ing and  practice  laid  down  by  the  code  are  followed  in  all  cases, 
whether  in  the  opinion  of  the  supreme  court  they  are  civil  cases  or 
not.  The  great  difficulty  has  been  to  determine  in  what  cases  parties 
were  entitled  to  a  jury  or  a  change  of  venue,  and  the  right  to  recover 
costs.  The  supreme  court,  in  numerous  cases,  have  taken  it  for  granted 
that  these  questions  depended  upon  whether  the  proceeding  under  con- 
sideration was  or  was  not  a  civil  action.  These  questions  will  be  con- 
sidered in  the  chapters  on  Trials,  Costs,  and  Change  of  Venue. 

A  great  part  of  the  confusion  that  exists,  and  the  conflicting  opin- 
ions found  in  the  adjudicated  cases,  have  been  the  result  of  a  failure 
to  give  the  statute  defining  a  civil  action  its  full  force  and  meaning. 
If  this  had  been  done  at  the  outset,  there  would  be  no  such  thing 
known  in  our  practice  as  a  special  proceeding,  and  much  of  the  litiga- 
tion that  has  resulted  from  what  may  be  regarded  as  a  failure  to  prop- 
erly construe  the  statute  would  have  been  avoided.  As  it  is,  the 
question  as  to  whether  a  proceeding  in  court  is  a  civil  action  or  a  special 
proceeding  does  not  depend  so  much  upon  the  statute  as  it  does  upon 

(f )  Knox  v.  Fesler,  17  Ind.  254.  (g)  2  G.  &  H.  348;  R.  S.  1881,  §  1024 

(1)  See  Powell  i>.  Powell,  104  Ind.  18.    et  seq. 
9 


130  CIVIL  ACTIONS.  [CHAP. 

the  opinion  of  the  particular  judge  who  may  be  called  upon  to  decide 
the  point. 

If  the  supreme  court  has  decided  that  the  proceeding  is  special,  the 
lower  courts  must  be  governed  by  that  decision,  but  if  the  exact  case 
under  consideration  has  not  been  before  the  supreme  court,  the  statute 
does  not  aid  the  court  or  the  attorney  in  determining  whether  it  is  a 
special  proceeding  or  not,  if  it  is  believed  the  case  does  not  fall  within 
the  general  code  definition  of  a  civil  action.  The  statute  contains  no 
definition  of  a  special  proceeding,  evidently  because  it  was  the  inten- 
tion that  there  should  be  no  such  thing  in  practice.  Our  code  differs 
in  this  respect  from  some  of  the  codes  of  other  states.  We  have  al- 
ready shown  this  to  be  the  case,  with  New  York.  In  California  they 
have,  under  their  practice  act,  three  classes  of  remedies,  viz. :  1.  Ac- 
tions. 2.  Special  proceedings.  3.  Provisional  remedies. 

Mr.  Estee  defines  special  proceedings  to  be :  "  Remedies  pursued  by 
a  party,  and  which  do  not  result  directly  in  a  final  judgment,  but  only 
in  establishing  a  right  or  some  particular  fact."h 

An  examination  of  the  cases  in  this  state  which  hold  certain  pro- 
ceedings to  be  special  will  disclose  the  fact  that  not  one  of  them  falls 
within  this  definition,  and  none  of  the  cases  attempt  to  define  a  special 
proceeding.  Outside  of  the  mere  statement  that  the  particular  pro- 
ceeding before  the  court  is  a  special  proceeding,  or  is  not  a  civil  case, 
the  cases  are  not  authority.  This  leaves  the  profession  without  any 
guide  in  determining  what  is  a  special  proceeding,  except  in  proceed- 
ings precisely  like  those  passed  upon  by  the  court. 

(h)  Estee's  PI.  and  Forms,  p.  5,  §  21. 


vni.] 


ACTIONS.  \VHERE   COMMENCED. 


131 


CHAPTER  VIII. 


ACTIONS,  WHERE  COMMENCED. 


SECTION  . 

1.  ACTIONS      THAT      MUST      BE      COM- 

MENCED   WHERE     THE     SUBJECT 
OF   THE   ACTION   IS   SITUATE. 

179.  The  statute. 

180.  Actions  for  specific  performance 

of  contracts  to  convey  real  es- 
tate. 

181.  To  set  aside   fraudulent   convey- 

ances of  real  estate. 

182.  To  foreclose  mortgages. 

183.  For  injury  to  real  estate. 

184.  Where   real   estate  is   situate   in 

more  than  one  county,  suit  may 
be  brought  in  either. 

185.  Counterclaim. 

186.  For  breach  of  covenant. 

2.  ACTIONS    THAT    MUST    BE   BROUGHT 

IN     THE     COUNTY     WHERE     THE 
CAUSE   OF   ACTION   AROSE. 

187.  The  statute. 

188.  Construction  of  the  statute. 

3.   ACTIONS   AGAINST   CORPORATIONS. 

189.  The  statute. 

190.  Construction  of  section  309. 


SECTION. 

4.  ACTIONS  FOR  INJURIES  TO  PERSON 
OR  PROPERTY,  AND  UPON  A  LIA- 
BILITY AS  COMMON  CARRIERS. 

191.  The  statute. 

192.  Construction  of  the  statute. 

5.    AGAINST    FOREIGN    CORPORATIONS. 

193.  In   any  county  where  money  or 

effects  belonging  to  or  due  com- 
pany may  be  found. 

6.   TO    CONTEST    OR    ESTABLISH    WILLS. 

194.  In  county  where  will  should  be 

probated. 

7.  ACTIONS  THAT  MUST  BE  BROUGHT 
IN  THE  COUNTY  WHERE  ONE  OF 
THE  DEFENDANTS  RESIDES. 

195.  The  statute. 

196.  Construction  of  the  statute. 

8.    ON    BILLS    AND    NOTES. 

197.  In  county  where  one  of  the  mak- 

ers, drawers,  or  acceptors  re- 
sides. 

198.  Attachment  proceedings. 

199.  Capias  ad  respondendum. 

200.  Actions  in  replevin. 

201.  Petition  to  sell  real  estate,  by  ad- 

ministrator. 

202.  Non-residents. 


I.   ACTIONS   THAT   MUST   BE   COMMENCED    IN  THE  COUNTY 
WHERE  THE  SUBJECT   OF  THE  ACTION   IS   SITUATE. 

179.  The  statute. — "Actions  for  the  following  causes  must  be 
commenced  in  the  county  in  which  the  subject  of  the  action  or  some 
part  thereof  is  situated : 

"First.  For  the  recovery  of  real  property  or  of  an  estate  or  interest 
therein,  or  for  the  determination,  in  any  form,  of  such  right  rr  interest, 
and  for  injury  to  real  property. 


132  ACTIONS,  WHERE   COMMENCED.  [CHAP. 

"Second.  For  the  partition  of  real  property. 

"Third.  For  the  foreclosure  of  a  mortgage  of  real  property. "a 

180.  Actions  for  specific  performance  of  contracts  to  con- 
vey real  estate. — The  different  causes  of  action  that  must  be  com- 
menced in  the  county  where  the  subject  of  the  action  or  some  part  of 
it  is  situate,  seems  to  be  very  clearly  stated  in  the  statute,  but  it  has 
sometimes  become  a  question  whether  the  cause  of  action  brought  op- 
erated upon  the  real  estate  or  upon  the  person -of  the  defendant.  If 
the  former,  the  action  is  properly  brought  in  the  county  where  the 
subject-matter  is  situate ;  if  the  latter,  the  action  is  transitory,  and 
must  be  brought  in  the  county  where  the  defendants,  or  some  of  them, 
reside. b 

It  was  held,  in  an  early  case,  before  the  enactment  of  the  code,  that 
an  action  for  specific  performance  of  a  contract  to  convey  real  estate 
operated  upon  the  person  of  the  defendant,  and  might  be  brought  in 
the  county  where  the  defendant  resided.6 

After  the  enactment  of  the  present  statute,  it  was  held  that  the  case 
of  Coon  v.  Cook  was  not  good  law  under  the  statute,  and  that  the  suit 
must  be  brought  in  the  county  where  the  real  estate  was  situate.*1 

It  is  difficult  to  see  why  the  rule  laid  down  in  the  former  case  is  not 
as  applicable  under  the  code  as  it  was  before.  The  case  decides,  in  ex- 
press terms,  that  the  action  for  specific  performance  operates  upon  the 
person.  This  position  is  not  controverted  in  the  later  case.  If  such 
is  the  law,  the  statute  does  not  require  that  the  action  should  be 
brought  in  the  county  where  the  real  estate  is  situate.  It  is  clearly 
true  that  the  action  for  specific  performance  is  not  to  recover  real  estate 
or  any  estate  or  interest  therein.  It  is  only  under  that  clause  requiring 
an  action  for  the  determination  in  any  form  of  such  right  or  interest  to  be 
brought  in  the  county  where  the  land  is  situate,  that  it  could  be  held 
that  the  action  must  be  brought  in  such  county.  The  court  does  not 
point  out  any  change  made  by  the  statute,  or  give  any  reason  for  hold- 
ing that  the  earlier  case  is  not  in  point. 

In  the  very  next  volume  of  our  Reports  it  is  held  that  the  action 
need  not  be  brought  in  the  county  where  the  real  estate  is  situate,  but 
is  transitory,  and  follows  the  person  of  the  defendant.6 

The  case  of  Coon  v.  Cook,  is  cited  as  decisive  of  the  question.  The 
case  of  Parker  V.  McAlister,  a  much  later  case,  holding  directly  the 
other  way,  is  not  referred  to  or  noticed  by  the  court  In  the  case  of 

(a)  B  S.  1881,  §  307.  (d)  Parker  v.  McAlister,  14  Ind.  12. 

(b)  McManus  v.  Bush,  48  Tnd.  303.  (e)  Dehart  r.  Dehart,  15  Ind.  167. 

(c)  Coon  v.  Cook.  6  Tnd.  208. 


Yin.]  ACTIONS,  WHERE   COMMENCED.  133 

Vail  v.  Jones,  31  Ind.  467,  this  question  was  again  presented  to  the 
supreme  court,  and  it  was  held  that  under  the  code  the  action  must  be 
brought  in  the  county  where  the  real  estate  is  situate,  and  Parker  v. 
McAlister  is  cited  as  authority.  The  later  case  of  Dehart  v.  Dehart, 
holding  the  other  way,  is  not  noticed/ 

As  we  have  four  decisions  directly  on  this  point,  two  each  way,  it 
would  be  difficult  to  lay  down  any  rule  as  settled  in  this  state,  but  as 
the  last  case  is  to  the  effect  that  the  statute  requires  the  action  to  be 
brought  in  the  county  where  the  land  is  situate,  it  would  be  safer  to 
follow  this  rule.  But  the  question  as  to  which  of  these  conflicting  de- 
cisions is  right  is  not  free  from  doubt.  It  is  clear  enough  that  the 
action  operates  upon  the  person  of  the  defendant  and  not  upon  the  real 
estate,  as  held  in  Coon  v.  Cook,  but  the  statute  seems  to  extend  further 
than  to  such  actions  as  operate  directly  upon  the  real  estate. 

It  not  only  requires  that  actions  for  the  recovery  of  real  estate,  or 
any  interest  therein,  shall  be  brought  in  the  county  where  the  real  es- 
tate is  situate,  but  all  actions  for  the  determination  in  any  form  of  such 
right  or  interest.  The  action  for  specific  performance  may  fall  within 
the  terms  of  this  statute,  but  it  is  not  at  all  clear  that  it  does. 

If  the  action  is  one  to  determine  a  right  or  interest  in  real  estate,  it 
must,  by  the  express  terms  of  the  statute,  be  brought  in  the  county 
where  the  real  estate  is  situate.  While  it  is  said  that  the  'action  oper- 
ates upon  the  person  of  the  defendant,  the  judgment  or  decree  author- 
ized in  this  class  of  actions,  can  not  properly  be  called  a  personal 
judgment.  The  reason  for  bringing  the  action  is  that  a  personal  judg- 
ment against  the  vendor  would  be  an  inadequate  remedy. 

It  has  been  held  in  several  cases  that  an  action  for  specific  perform- 
ance is  not  within  the  statute  authorizing  new  trials,  as  of  right  upon 
payment  of  cost,  on  the  ground  that  it  is  not  an  action  for  the  recovery 
of  or  to  determine  and  quiet  the  question  of  title,8 

In  the  case  of  Benner  v.  Benner,  the  court  say:  "In  order  to  test 
the  correctness  of  the  decision  of  the  court  below,  it  is  necessary  to  de- 
termine, as  nearly  as  may  be,  the  precise  character  of  this  action,  and 
thereby  ascertain  whether  it  comes  within  either  section  592  or  section 
611,h  for  if  not,  section  601 '  is  not  applicable  to  it. 

It  is  claimed  that  this  is  a  suit,  by  the  plaintiff  below,  as  a  cestui  que 
trust  against  the  defendant  as  trustee,  to  determine  and  quiet  the  ques- 
tion of  title  to  the  property  held  in  trust,  and,  therefore,  that  it  is 

(f)  Loeb  v.  Mathis,  37  Ind.  306.  25  Ind.  271;    McFerrin  v.  McFerrin, 

(g)  K.  S.  1881,  $  1050,  1070;  Ben-     69  Ind.  29. 

ner  v.  Benner,  10  Ind.  256;  Allen  v.         (h)  R.  S.  1881,  §§  1050,  1070. 
Davidson.  16  Ind.  416;  Walker  v.  Cox,         (i)  E.  S.  1881,  §  1064. 


134  ACTIONS,  WHERE   COMMENCED.  [CHAP. 

within  the  above  provision  and  to  be  governed  by  section  611  above 
quoted.  But  we  do  not  think  the  case  falls  within  either  of  the  pro- 
visions above  quoted.  The  substratum  of  the  case  is  the  title  bond  set 
forth  in  the  complaint,  and  without  it  no  cause  of  action  whatever  is 
found  in  the  complaint.  ...  It  sets  up  the  bond  or  agreement 
executed  in  consideration  of  the  trust,  and  prays  a  specific  performance 
of  the  agreement,  which  is  adjudged  by  the  court  on  payment  of  the 
money  mentioned  in  the  bond  and  the  interest,  and  we  think  it  is  a 
case  simply  for  the  specific  performance  of  a  contract.  It  is  evident 
that  the  statute  above  quoted  does  not  embrace  cases  of  specific  per- 
formance merely,  and  it  follows  that  the  court  below  committed  no 
error  in  overruling  the  motion." 

It  would  seem  that  if  the  action  for  specific  performance  was  so  far 
an  action  to  determine  a  right  or  interest  in  real  estate  as  to  bring  it 
within  the  statute  requiring  such  actions  to  be  brought  in  the  county 
where  the  land  is  situate,  that  it  would  fall  within  the  other  statute  au- 
thorizing a  new  trial  without  cause,  but  the  decisions,  as  already 
shown,  are  the  other  way.  This  question  of  the  proper  place  to  bring 
the  action  can  not  be  regarded  as  settled,  except  so  far  as  that  the  last 
case  requires  the  suit  to  be  brought  in  the  county  where  the  land  is 
situate. 

181.  To  set  aside  fraudulent  conveyances  of  real  estate. 
Actions  to  set  aside  fraudulent  conveyances  are  held  to  be  within  the 
statute,  and  therefore  such  suits  must  be  brought  in  the  county  where 
the  real  estate  is  situated 

A  difficulty  might  arise  in  this  class  of  cases,  as  also  in  actions  to 
foreclose  mortgages,  where,  in  addition  to  the  setting  aside  of  the  deed, 
or  the  foreclosure  of  the  mortgage,  a  personal  judgment  is  claimed 
against  the  defendants  or  a  part  of  them.  The  plaintiff,  in  an  action 
to  set  aside  a  deed,  may,  in  the  same  action,  recover  a  personal  judg- 
ment for  his  debt.k 

One  of  these  actions  is  local,  the  other  transitory,  and  the  parties  to 
the  actions  are  different.  So  far  as  the  action  is  for  the  recovery  of  a 
personal  judgment,  it  affects  the  debtor  alone,  but  the  action  to  set 
aside  the  conveyance  affects  the  defendant,  to  whom  the  conveyance 
is  made,  he  being  a  necessary  party  defendant.  If  the  defendant, 
against  whom  a  personal  judgment  is  sought,  does  not  reside  in  the 
county  where  the  real  estate  is  situate,  can  he  be  compelled  to  defend 

(j)  The  New  Albany,  etc.,  K.  K.  Co.         (k)  Love   v.   Mikals,   11    Ind.  227; 
v.  Huff,  19  Ind.  444;  Yail  v.  Jones,  31     Iglehart's  Prac.,  p.  40,  \\  34,  35. 
Ind.  467. 


VIII.]  ACTIONS,  WHERE   COMMENCED.  135 

the  personal  action  in  another  county,  in  which  the  court  would  have 
no  jurisdiction  if  the  personal  action  were  brought  alone,  because  of  the 
fact  that  the  action  is  joined  with  another  to  set  aside  the  conveyance  ? 
I  am  not  aware  that  the  question  has  been  settled  directly  or  indirectly 
by  the  supreme  court.  It  is  well  settled  that  in  an  ordinary  proceed- 
ing the  court  must  have  jurisdiction  of  the  person  of  the  defendant,  as 
well  as  the  subject-matter  of  the  action,  or  any  judgment  that  may  be 
rendered  will  be  absolutely  void.1 

But  here  the  court  has  jurisdiction  of  the  subject-matter,  so  far,  at 
least,  as  the  action  to  set  aside  the  fraudulent  conveyance  is  concerned, 
and  jurisdiction  of  the  person  of  the  defendant,  if  properly  served 
with  process,  so  far  as  that  issue  is  concerned ;  but  the  court  would 
have  no  jurisdiction  of  the  person  of  the  defendant  for  the  purposes 
of  the  personal  action,  if  that  action  stood  alone.  If  the  plaintiff  can 
thus  join  the  two  actions,  under  such  circumstances,  and  when  the  ju- 
risdiction of  the  person  is  acquired  for  one  purpose,  the  court  acquires 
jurisdiction  for  all  the  purposes  of  the  action,  the  debtor  may  thus  be 
compelled  to  defend  the  personal  action  out  of  his  county,  and  have 
judgment  against  him  out  of  the  county,  if  defeated.  There  might  be 
a  finding  against  him  in  the  personal  action,  and  a  finding  in  his 
favor  in  the  action  to  set  aside  the  conveyance.  In  such  case,  it  would 
be  clear  that  no  valid  personal  judgment  could  be  rendered  against  him 
for  the  reason  that  the  judgment  of  the  court  would  show  that  there 
was  no  such  cause  of  action  as  would  give  the  court  jurisdiction. 

The  rule  that  an  action  for  a  personal  judgment  may  be  joined  with  one 
to  set  aside  a  fraudulent  conveyance  where  the  parties  to  the  two  causes 
of  action  must  necessarily  be  different,  and  a  different  judgment  must 
be  rendered  against  each,  is  carrying  the  right  to  join  different  causes 
of  action  beyond  all  precedent  and  reason,  and,  where  the  two  causes 
of  action  require  different  places  of  trial,  it  is  believed  the  two  can  not  be 
properly  joined,  thus  giving  the  court  jurisdiction  over  one  cause  of 
action  that  it  could  not  otherwise  have.m 

182.  To  foreclose  mortgages. — In  actions  to  foreclose  mortgages 
the  party  has  the  right  to  recover  judgment  on  the  notes,  if  any,  and 
a  decree  foreclosing  the  mortgage  in  the  same  action,  and,  therefore, 
they  may  be  properly  brought  in  the  county  where  the  real  estate  is 
situate,  and  the  personal  judgment  may  be  there  rendered;  but  in  this 

(1)  Kyle  v.  Kyle,  55  Ind.  387 ;  Pack-        (m)  Iglebart's  Prac.,  p.  40,  §?  34,  35; 
ard  v.  Mendenhall,  42  Ind.  598;  Haw-     Freeman  on  Judgments,  \  143. 
kins  v.  Hawkins,  28  Ind.  66. 


136  ACTIONS,  WHERE    COMMENCED.  [CHAP. 

class  of  eases  jurisdiction  of  the  person  of  the  defendant  against  whom 
personal  judgment  is  sought,  whether  he  be  the  maker  of  the  note 
or  a  party  who  has  assumed  the  payment  of  the  debt,  can  only  be  ac- 
quired by  personal  service  of  process  upon  him.n 

The  joinder  of  the  action  for  personal  judgment,  and  to  foreclose 
the  mortgage,  is  quite  different  from  the  joinder  of  actions  to  set  aside 
a  fraudulent  deed  and  to  recover  judgment  for  the  debt.  The  mort- 
gage is  but  an  incident  to  the  personal  indebtedness,  and  a  right  to  re- 
cover the  debt  must  be  shown,  or  the  mortgage  can  not  be  foreclosed.0 

But  it  is  not  necessary  that  a  personal  judgment  should  actually  be 
recovered.  Although  the  debt  is  the  principal  thing,  and  the  mort- 
gage its  mere  incident,  the  mortgage  may  be  foreclosed  where  the  party 
personally  liable  for  the  debt  is  not  before  the  court  by  personal  service. 
The  court  may,  in  such  case,  obtain  jurisdiction  of  the  subject-matter 
of  the  action  by  constructive  notice  to  the  parties,  and  if  the  right  to 
recover  the  debt  is  shown,  a  decree  of  foreclosure  may  be  rendered. 
For  the  purposes  of  such  foreclosure  the  court  has  jurisdiction  to  render  a 
decree  by  virtue  of  such  constructive  notice,  and  the  defendant  will 
be  bound  by  the  decree,  although  a  personal  judgment  against  him  on 
such  notice  would  be  absolutely  void.p 

183.  For  injury  to  real  estate. — Actions  for  injury  to  real  estate, 
although  the  action  operates  upon  the  person  of  the  defendant,  are  re- 
quired by  the  express  terms  of  the  statute  to  be  brought  in  the  county 
where  the  real  estate  is  situate. q 

184.  Where  real  estate  is  situate  in  more  than  one  county 
suit  may  brought  in  either. — Where  an  action  affects  real  estate 
in  more  than  one  county,  the  suit  may  be  brought  in  either  county ; 
but  it  has  been  field  that,  when  suit  is  brought  to  set  aside  a  conveyance 
of  real  estate  lying  in  two  counties,  but  the  sole  object  of  the  action  is 
to  reach  and  affect  that  part  of  the  real  estate  lying  in  one  county  only, 
the  suit  must  be  brought  in  that  county,  and  that  the  fact  that  the 
conveyance  covers  the  whole  of  the  real  estate  in  both  counties  can  not 
affect  the  question/ 

(n)  Kyle  v.  Kyle,  55  Ind.  387 ;  Ire-  (p)   Mitchell  v.  Gray,  18  Ind.  123; 

land  v.  Webber,  27  Ind.  256;  Beard  v.  Iglehart's  Prao.,  p.  95,  §  7;  Gibson  v. 

Beard,  21  Ind.  021 ;   Mitchell  v.  Gray,  Green,  "2'2  Ind.  4±2;   Truitt  v.  Truitt, 

18  Ind.  123;  Allen  v.  Cox,  11  Ind.  383.  38  Ind.  16. 

(o)  Trayser  v.  The  Trustees  of  As-  (q)  Loeb  v.  Mathis,  37  Ind.  306. 

bury  University,  39  Ind.  556;  Connell  (r)  The  New  Albany,  etc.,  R.  K.  Co. 

v.  Clifford.  45  Ind.  392;  Brick  v.  Scott,  v.  Huff,  19  Ind.  444. 
47    Ind.   299;    Greenman   v.    Fox,   54 
Ind.  267. 


VHI.]  ACTIONS,  WHERE   COMMENCED.  137 

185.  Counterclaim. — The  question  has  been  presented  to  the  su- 
preme court,  whether,  in  case  an  action  is  properly  brought  in  one 
county,  the  defendant  may,  by  way  of  counterclaim  or  otherwise,  set 
up  as  a  defense  to  the  action  such  matter  as  would  give  him  a  cause 
of  action  against  the  plaintiff,  and,  if  brought  by  him,  must  have  been 
instituted  in  another  county. 

The  facts  shown  in  the  case  were  these :  A.  brought  his  action  against 
B.  in  Dearborn  county  on  a  note.  B.  set  up,  by  way  of  answer,  that  he 
had  executed  to  the  plaintiff  a  deed  for  lands  in  Jasper  county,  abso- 
lute on  its  face,  but  intended  as  a  mortgage  to  secure  the  note  sued  on ; 
that  the  plaintiff  held  possession  of  the  real  estate,  and  refused  to  sur- 
render possession  on  payment  of  the  note.  The  jury  found  for  the  de- 
fendant that  the  deed  was  intended  as  a  mortgage,  and  judgment  was 
rendered  accordingly,  but  the  court  below  arrested  the  judgment  on 
the  ground  that  the  court  had  no  jurisdiction  to  try  the  question  of  the 
title  to  real  estate  in  another  county. 

It  was  held  by  the  supreme  court,  Elliot,  J.,  dissenting,  that,  although 
the  court  of  Dearborn  county  would  have  no  jurisdiction  of  the  mat- 
ters set  up  in  the  answer  if  suit  had  been  brought  therefor  in  that 
county,  the  court  had  such  jurisdiction  when  presented  by  way  of  an- 
swer."8 

186.  For  breach  of  covenant. — It  has  been  held  that  an  action 
for  the  breach  of  a  covenant  in  a  deed  of  conveyance  of  real  estate  is 
not  local,  but  must  be  brought  in  the  county  where  the  defendant  re- 
sides.1 

2.    ACTIONS    THAT    MUST    BE    BROUGHT    IN    THE    COUNTY 
WHERE  THE   CAUSE   OF  ACTION   AROSE. 

187.  The  statute. — The  statute  names  two  classes  of  actions  that 
must  be  brought  in  the  county  where  the  cause  or  some  part  thereof  arose. 

Firzt.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  stat- 
ute, except  when  imposed  for  an  offense  committed  on  a  lake  or  river 
or  other  stream  of  water  situated  in  two  or  more  counties,  the  action 
may  be  brought  in  any  county  bordering  on  such  lake,  river,  or  stream, 
and  opposite  to  the  place  where  the  offense  was  committed. 

Second.  Against  a  public  officer  or  person  specially  appointed  to  exe- 
cute his  duties  for  an  act  done  by  him  in  virtue  of  his  office,  or  against 
a  person  who,  by  his  command,  or  his  aid,  shall  do  any  thing  touching 
the  duties  of  such  officer.0 

(s)  Vail  v.  Jones,  31  Ind.  467.  (u)  K  S.  1881,  §  308. 

(tj  Coleman  v.  Lyman,  42  Ind.  289. 


138  ACTIONS,  WHERE   COMMENCED.  [CHAP. 

188.  Construction  of  the  statute.— The  first  clause  of  this  sec- 
tion is  very  general  in  its  terms,  and,  so  far  as  I  know,  it  has  received 
no  construction  at  the  hands  of  the  supreme  court.  Two  causes  of  ac- 
tion may  accrue  on  account  of  the  doing  or  the  omission  to  do  an  act 
for  which  a  penalty  is  imposed  by  the  statute.  One  of  these  may  be 
for  the  penalty  imposed ;  another  an  action  for  damages,  without  refer- 
ence to  the  statute,7  and,  in  some  cases,  where  the  act  is  done  by  a 
public  officer,  he  and  his  sureties  may  be  sued  on  his  bond. 

In  the  case  of  a  sheriff,  the  statute  provides  that  if  he  shall  fail 
to  levy  an  execution  and  sell  property  justly  liable  to  execution,  or 
shall  neglect  or  refuse  to  return  any  execution,  as  required  by  law,  or 
shall  neglect  or  refuse,  on  demand,  to  pay  over  any  money  collected  on 
execution,  he  shall  be  amerced  in  the  amount  of  the  property  that 
should  have  been  levied  upon  or  the  money  not  paid  over.w  And  in 
addition,  the  plaintiff  shall  recover  of  the  officer  legal  interest  and 
damages  not  exceeding  ten  per  cent. 

The  amount  to  be  recovered,  as  provided  by  this  statute,  is  very 
clearly  a  penalty ; x  and  if  the  action  is  brought  against  the  sheriff 
alone,  to  recover  the  amount  thus  fixed  by  the  statute,  it  must  be  com- 
menced in  the  county  where  the  cause  of  action  arose.  The  same 
would  be  the  rule  if  brought  against  the  sheriff,  under  the  second 
clause  of  the  section,  "  for  an  act  done  by  virtue  of  his  office."  It  is 
very  doubtful  whether  any  action  could  be  maintained  under  this  latter 
ciause,  however,  for  the  mere  omission  of  a  public  officer,  as  the  statute 
applies,  in  terms  only,  to  "  acts  done  by  him." 

The  statute  fixing  the  penalty  against  the  sheriff,  as  above  stated, 
provides  that  the  recovery  may  be  had  by  motion  against  the  officer  in 
the  proper  court,  or  by  action  on  the  bond  of  the  sheriff.7 

If  the  recovery  is  had  by  motion,  it  would  seem  to  be  necessary  that 
the  motion  should  be  made  in  the  court  from  which  the  execution 
issued.  If  so,  and  the  execution  were  issued  to  the  sheriff  of  an- 
other county,  and  should  have  been  levied  upon  property  there,  the 
cause  of  action  for  the  failure  to  levy  would  arise  in  that  county,  and 
the  right  to  institute  the  action  in  the  county,  from  which  the  exe- 
cution issued,  would  not  exist  under  section  308.  Then  in  what 
county  can  such  a  proceeding  be  instituted  by  motion,  where  the  exe- 
cution issues,  from  one  county  to  the  sheriff  of  another?  The  section 
authorizing  the  motion  does  not  require  that  it  shall  be  made  in  the 

(v)  Stevens  v.  Beckes,  3    Blkf.  88;  (w)  R.  S.  1881,  §?  783,  784,  785,  786. 

Baker  v.  Mortimer,  5  Blkf.  32  ;  West-  (x)  Williams   r.  The  State,  5   InA 

ern  Union  Telegraph  Co.  v.  Axtel,  69  235. 

Ind.  199.  (y)  K.  S.  1881,  §  787. 


Vni.]  ACTIONS,  WHERE  COMMENCED.  139 

court  from  which  the  execution  issued  but  from  the  "proper  court." 
It  is  evident,  however,  that  the  proper  court  must  be  the  one  in  which 
the  judgment  was  recovered  and  from  which  the  execution  issued.2 

The  statute  authorizes  an  action  on  the  bond  of  the  sheriff  in  such 
cases. a  And  the  action  on  the  bond  would  be  properly  brought  in  the 
county  where  the  officer  resides,  under  section  312. 

0 

3.   ACTIONS   AGAINST   CORPORATIONS. 

189.  The  statute. — "  When  a  corporation,  company  or  an  indi- 
vidual has  an  office  or  agency  in  any  county,  for  the  transaction  of 
business,  any  action  growing  out  of  or  connected  with  the  business  of 
such  office,  may  be  brought  in  the  county  Avhere  the  office  or  agency  is 
located,  at  the  option  of  the  plaintiff,  as  though  the  principal  resided 
therein,  and  service  upon  any  agent  or  clerk  employed  in  the  office  or 
agency,  shall  be  sufficient  service  upon  the  principal ;  or  process  may 
be  sent  to  any  county  and  served  on  the  principal."  b 

190.  Construction  of  section  309. — It  will  be  noticed  that  this 
section  is  not  limited  to  corporations,  but  applies  equally  to  any  com- 
pany or  individual  who  has  an  office  or  agency  in  any  county  for  the 
transaction  of  business.     The  right  to  sue  under  this  section,  however, 
is  expressly  limited  to  actions  "  growing  out  of  or  connected  with  such 
business."     It  has  been  held,  therefore,  that  an  action  against  a  railroad 
company,  for  injury  to  stock  by  the  cars  of  the  company,  can  not  be 
maintained  under  this  section.0 

4.   ACTIONS     FOR     INJURIES    TO     PERSONS    OR    PROPERTY, 
AND   UPON   A    LIABILITY  AS  COMMON   CARRIERS. 

191.  The  statute. — The  statute,  section  311,  provides  that  "an 
action  against  a  railroad  or  canal  corporation  or  company,  or  owner  of 
a  line  of  stages  or  coaches,  for  an  injury  to  person  or  property  upon 
the  railroad,  canal,  or  line  of  stages  or  coaches  of  the  defendant,  or 
upon  a  liability  as  a  carrier,  may  be  brought  in  any  county  through 
or  into  which  such  railroad,  canal,  or  line  of  stages  or  coaches  passes. "d 

192.  Construction   of  the    statute. — This  section  covers  two 

(zj  Dawson  v.  Shaver,  1  Blkf.  204.  The   State,  10  Ind.  58;   Davis  v.  The 

(a)  The   State  v.  Youmans,  1    Ind.  State,  44  Ind.  38. 

W;   Bagot  v.  The  State,  33  Ind.  262;  (b)  R.  S.  1881,  §  309. 

The  State  v.  Spencer,  4  Blkf.  310;  The  (c)  The   Toledo,   etc.,  R.  R.  Co.   tx 

State  v.  Hamilton,  32  Ind.  104;    The  Owen,  43  Ind.  405. 

State  v.  Guard,  6  Blkf.  519;  Collier  v.  (d)  R.  S.  1881,  §  311. 


140  ACTIONS,  WHERE   COMMENCED.  [CHAP. 

classes  of  cases:  1.  Actions  for  injuries  to  person  or  property;  2. 
Actions  upon  liabilities  as  carriers.  In  either  case  the  action  may  be 
brought  in  any  county  through  or  into  which  the  railroad,  canal,  or 
stage  line  passes,  without  reference  to  the  question  whether  the  company 
has  an  office  or  agency  in  the  county  or  not.  Under  either  sections 
309  or  311,  the  action  may  be  brought  in  the  county  where  the  principal 
resides.6  But  it  has-been  held  that  this  section  only  applies  to  the  com- 
mon-law liability  for  injury  to  property,  and  that  under  the  statute  provid 
ing  a  special  remedy  for  such  injury,  the  action  must  be  brought  in 
the  county  where  the  injury  was  done.f 

In  the  case  of  the  Toledo,  etc.,  R.  Co.  v.  Milligan,  the  supreme 
court  say :  "As  we  have  seen,  the  first  paragraph  of  the  complaint  is 
based  on  the  statute  which  gives  a  new  and  extraordinary  remedy,  and 
declares  that  the  action  must  be  commenced  in  the  county  where  the 
animal  is  killed  or  injured.  That  paragraph  failed  to  allege  where  the 
animals  were  killed  or  injured,  and,  therefore,  would  have  been  bad  on 
demurrer. 

"The  second  and  third  paragraphs  of  the  complaint  proceed  on  the 
common-law  liability,  and  were  transitory  actions,  and  might  be  brought 
in  any  county  through  which  the  road  passed." 

5.   AGAINST   FOREIGN   CORPORATIONS. 

193.  In  any  county  where  money  or  effects  belonging  to  or 
due  company  may  be  found. — In  the  case  of  foreign  corporations 
the  action  may  be  brought  in  any  county  within  the  state  where  any  prop- 
erty, money,  credits,  or  effects  belonging  or  due  to  the  corporation  may 
be  found,  and  a  foreign  corporation  under  this  statute  is  one  created 
by  or  under  the  laws  of  any  other  state,  government,  or  country.8 

6.   TO   CONTEST   OR   ESTABLISH   WILLS. 

194.  In  county  where  will  should  be  probated. — Actions  to 
contest  or  establish  wills  must  be  brought  in  the  county  in  which  the 
will,  if  valid,  ought  according  to  law  to  be  proved  and  recorded.11 

(e)  The  Indiana   Mutual    Fire  In?,  etc.,  R.  R.  Co.  v.  Kenner,  17  Ind.  135; 
Co.  tj.Tlutledse,  7  Ind.  25;  The  New  The   Indianapolis,   etc.,    R.  R.  Co.   v. 
Albany,  etc.,  R.  R.  Co.  v.  Haskell,  11  Solomon,  23  Ind.  534;  Jolly  v.  Gher- 
Ind.  301.  ing,  40  Ind.  139. 

(f)  R.  S.  1881,  §  4026;  The  Toledo,  (g)  R.  S.  1881,  §  313. 

etc-.,  R.  R.  Co.  v.  Milligan,  52  Ind.  505;         (h)  R.   S.    1881,  §§310,  2580;  Igle- 
The   Indianapolis,   etc.,    R.   R.  Co.   v.    hart's  Prac.,  p.  80,  §  11. 
Wilsey,  20  Ind.  229 ;  The  Indianapolis, 


Vni.]  ACTIONS,  WHERE  COMMENCED.  .  141 

And  wills  may  be  proved  and  recorded — 

"First.  Where  the  testator  immediately  previous  to  his  death  was  an 
inhabitant  of  such  county. 

"Second.  Where  the  testator,  not  being  an  inhabitant  of  this  state, 
shall  die  in  such  county,  leaving  assets  therein. 

"Third.  Where  the  testator,  not  being  an  inhabitant  of  this  state, 
shall  die  out  of  this  state-,  leaving  assets  in  such  county. 

"Fourth.  Where  a  testator,  not  being  an  inhabitant  of  this  state, 
shall  die  out  of  the  state,  not  leaving  assets  in  such  county,  but  assets 
of  such  testator  shall  come  ijato  the  county  thereafter." ' 

7.   ACTIONS    THAT    MUST    BE    BROUGHT    IN    THE    COUNTY 
WHERE   ONE   OF  THE    DEFENDANTS    RESIDE/S. 

195.  The  statute. — "  In  all  other  cases  the  action  shall  be  com- 
menced in  the  county  where  the  defendants,  or  one  of  them,  has  his 
usual  place  of  residence.     Where  there  are  several  defendants  residing 
in  different  counties,  the  action  may  be  brought  in  any  county  where 
either  defendant  resides,  and  a  separate  summons  may  be  issued  to  any 
other  county  where  the  other  defendants  may  be  found ;  and  in  cases  of 
non-residents  or  persons  having  no  permanent  residence  in  the  state, 
action  may  be  commenced  and  process  served  in  any  county  where 
they  may  be  found.     But  any  action  brought  by  the  assignee  of  a 
claim  arising  out  of  contract,  whether  assigned  in  writing  or  by  de- 
livery, shall  be  commenced  in  the  county  where  one  or  more  of  the 
parties  immediately  liable  to  judgment  and  execution  reside,  and  not 
elsewhere."-1 

If  the  action  does  not  fall  within  the  five  preceding  sections  already 
considered,  the  place  of  bringing  the  action  must  be  governed  by  sec- 
tion 312. 

196.  Construction  of  the  statute. — Where  all  of  the  parties  re- 
side in  the  same  county,  and  the  action  is  purely  personal,  no  question 
can  arise  as  to  the  proper  place  of  bringing  the  suit ;  but  where  the  de- 
fendants reside  in  different  counties,  the  section  makes  a  distinction  be- 
tween actions  on  contract  and  other  personal  actions,  where  the  action 
is  brought  by  the  assignee.     If  under  this  section  the  original  debtor 
sues,  he  may  bring  his  action  in  the  county  where  either  defendant  re- 
sides. 

ON   BILLS    AND   NOTES. 

197.  In  county  where  one  of  the  makers,  drawers,  or  ac- 

(i)  R.  S.  1881,  §  2580.  Evans,  89  Ind.400;  ilcCauley  v.  Mur- 

(j)  R.   S.   1881,   §   312;    Shearer  v.    dock,  97  Ind.  229. 


142  ACTIONS,  WHERE   COMMENCED.  [CHAP. 

ceptors  resides. — We  have  another  statute,  which  applies  exclu- 
sively to  actions  on  bills  and  notes,  which  provides  that  the  holder  of 
any  bill  or  note  may  institute  one  suit  against  the  whole  or  any  num- 
ber of  the  parties  liable  to  such  holder,  but  such  holder  shall  not  at 
the  same  term  of  court  institute  more  than  one  suit  on  such  note  or 
bill.k 

Under  this  section,  as  it  was  originally  enacted,  there  was  no  limita- 
tion of  the  right  of  the  holder  to  recover  against  all  of  the  parties, 
whether  originally  liable  as  makers  or  acceptors  or  as  indorsers,  but  by 
an  amendment,  passed  in  1875,  it  was  provided  that,  in  order  to  re- 
cover against  the  makers,  drawers,  or  acceptors,  the  action  must  be 
brought  in  the  county  where  one  of  such  makers,  acceptors,  or  drawers 
resided.  •  % 

The  section  does  not  prevent  the  holder  bringing  his  action  in  the 
county  where  the  indorsers  or  one  of  them  resides,  but  he  can  not,  in 
such  county,  recover  a  judgment  against  the  maker,  drawer,  or  ac- 
ceptor. l 

Prior  to  the  amendment,  the  supreme  court  held  that  the  action 
could  be  maintained  in  the  county  where  one  of  the  indorsers  resided, 
and  judgment  recovered  against  all  of  the  parties,  both  under  section 
312  and  section  5516,  because  the  indorser  was,  under  section  312,  im- 
mediately liable  to  the  holder ;  and,  under  section  5516,  the  right  to  sue 
in  the  county  where  the  indorser  resided  was  expressly  given. m 

But  it  is  otherwise  under  the  amendment,  the  'object  of  which  was 
to  prevent  the  recovery  of  a  judgment  against  the  maker,  acceptor,  or 
drawer  out  of  his  county.n 

It  must  be  remembered  that  this  section  of  the  statute  applies  only 
to  actions  on  notes  or  bills.  In  actions  on  other  assignable  contracts, 
the  suit  may  be  brought  in  the  county  where  the  indorser  resides,  and 
judgment  be  there  recovered  against  all  the  parties  immediately  liable 
to  the  assignee.0 

The  question  of  what  contracts  are  assignable  has  been  considered  in. 
a  former  chapter.  P 

198.  Attachment    proceedings. —  In  attachment  proceedings, 

(k)  R.  S.  1881,  §  5516.  (n)  Morrison  v.  Fishell,  64  Ind.  177. 

(1)  Acts  of  1875,  p.  119.  (o)  McCammock   v.  Clark,  16   Ind. 

(m)  Keiser  v.  Yandes,  45  Ind.  174;  320;  Ward  v.  Buell,  11  Ind.  327;  Ar- 

Hall    v.  Suitt,  39   Ind.  316;    Scott   v.  buckle  v.  Spaugh,  11  Ind.  372;  O'Brien 

Millard,  10  Ind.  158;   Ward  v.  Buell,  v.  Flanders,  41  Ind.  486. 

11  Ind.  327;  Swing;  v.  Logan,  40  Ind.  (p)  Ante,  §  39  et  seq. 
342;  Norvell  v.  Kittle,  23  Ind.  346. 


VIII.]  ACTIONS,  WHERE    COMMENCED.  143 

the  attachment  being  merely  incidental  to  the  main  action,  must,  where 
the  principal  defendant  is  a  resident  of  the  state,  be  brought  in  the 
county  where  he  resides,  and  can  not  be  brought  in  the  county  where 
the  property  is  situate.*1 

And  where  the  action  is  brought  before  a  justice  of  the  peace,  'it 
must  be  brought  in  the  township  where  the  defendant  resides/ 

Where  the  defendant  is  a  non-resident,  the  action  may  be  brought  in 
any  county  in  the  state. 

199.  Capias    ad    respondendum. — In  actions   commenced   by 
capias  ad  respondendum,  before  a  justice  of  the  peace,  the  jurisdiction 
extends  over  the  whole  county,  and  over  all  persons  found  in  the 
county,  whether  they  reside  therein  or  in  some  other  county.8 

200.  Actions  in  replevin. —  In  actions  in  replevin,  before  jus- 
tices of  the  peace,  the  suit  may  be  brought  either  in  the  township 
where  the  defendant  resides  or  in  the  township  where  the  property  was 
unlawfully  taken  or  detained.     This  has  been  held  on  the  ground  that 
the  unlawful  taking  or  detention  of  personal  property  is  a  trespass, 
within  the  meaning  of  section  1443  of  the  statute.1 

The  rule  has  been  extended  even  farther  than  this,  the  supreme  court 
holding  that  the  action  may  be  brought  in  any  township  in  the  county, 
without  reference  to  the  place  of  the  defendant's  residence,  whether  in 
or  out  of  the  township,  or  the  place  of  the  unlawful  taking  or  deten- 
tion of  the  property.11 

The  last  case  decided  on  the  question  limits  the  right  to  sue  to  the 
township  where  the  defendant  resides,  or  where  the  property  was  taken 
or  detained,  and  overrules  previous  cases. v 

Two  of  the  cases  expressly  decide  that  the  action  may  be  brought 
anywhere  in  the  county. 

In  the  circuit  court,  the  action  of  teplevin  must  be  brought  in  the 
county  where  the  defendant  resides. w 

201.  Petition  to  sell  real  estate  by  administrator. — It  has 
been  held  by  the  supreme  court  that  a  petition  by  an  administrator  for 
sale  of  the  real  estate  of  the  decedent  may  be  filed  in  either  the  county 

(q)  Bobbins  v.  Alley,  38  Ind.  553.  21  Ind.  303;  Nesbit  u.  Long,  37  Ind. 

(r)  Michael  v.  Thomas,  24*  Ind.  72.  300. 

(s)  Harris  v.  Knapp,  21    Ind.  198;  (u)  Beddinger   v.  Jocelyn,  18   Ind. 

Miohael  v.  Thomas,  24  Ind.  72;  Gra-  325;  Test  v.  Small,  21  Ind.  127. 

ham  v.  Klyla,  29  Ind.  432.  (v)  Copple  v.  Lee,  78  Ind.  231 ;  Nes- 

(t)  R.  S.   1881,  §  1443;   Jocelyn  v.  bit  v.  Long,  37  Ind.  300. 

Barrett,  18  Ind.  128;  Cool;  r.  Gibson,  (wl  Hodson  v.  Warner.  60  Ind.  214. 


144  ACTIONS,  WHERE  COMMENCED.  [CHAP. 

where  the  real  estate  is  situate  or  in  the  county  where  letters  of  ad- 
ministration are  taken  out,  and  that  the  court  of  either  county  would 
have  jurisdiction ; x  and  the  case  of  Ex  parte  Shockley,  14  lud.  413, 
holding  that  the  court  of  the  county  where  the  letters  were  issued  had 
exclusive  jurisdiction  was  overruled.  But  in  a  still  later  case  it  is 
again  held  that  the  court  issuiug  the  letters  has  exclusive  jurisdiction.  (1) 
202.  Non-residents. — Where  the  defendant  has  no  permanent 
residence  in  the  state,  or  is  a  non-resident,  he  may  be  sued  in  any 
county  in  the  state.7 

(x)  Williamson  v.  Miles,  25  Ind.  55.        (y)  K.  S.  1881,  §  312;  McCauley  v. 
(1)  Vail  v.  Rinehart,  105  Ind.  6.  Murdock,  97  Ind.  229,  233. 


IX.] 


ACTIONS,  HOW   COMMENCED. 


145 


CHAPTER   IX. 


ACTIONS,  HOW  COMMENCED. 


SECTION. 
THE  SUMMONS  AND  PUBLICATION. 

203.  The  statute. 

204.  What  is  the  commencement  of  an 

action. 

205.  Summons  must  be  made  returna- 

able  at  first  term  after  its  issue. 

206.  Summons,    when    returnable    be- 

fore justice  of  the  peace. 

207.  What  summons  must  contain. 

208.  When  new  summons  must  issue 

on  cross-complaint  of  surety. 

209.  Summons   must  issue  on  supple- 

mental complaint. 

SERVICE   OF    SUMMONS. 

210.  The  statute. 

211.  Summons,  how  served,  when  de- 

fendant resides  out  of  the  state. 

212.  Service  on  infants. 

HOW   SERVED   ON   CORPORATIONS. 

213.  The  statute. 

214.  Officers  upon  whom  service  may 

be  made. 

215.  In   actions   against   railroad  cor- 

porations for  killing  stock. 

216.  In  actions  to  enforce  liens  against 

boats  and  other  water-crafts. 

217.  In  mandamus. 

218.  In  actions  against  townships. 


SECTION. 
HOW   DEFECTS   IN   SERVICE   WAIVED. 

222.  By  appearance. 

223.  Special  appearance  does  not  waive 

defects. 

224.  What  constitutes  an  appearance. 

225.  An   agreement   indorsed   on   the 

complaint,  waiving  process,  not 
an  appearance. 

226.  Appearance  may  be  in  person  or 

by  attorney. 

227.  Appearance  by  attorney,  without 

authority. 

228.  When  attorney's  authority  to  ap- 

pear can    be  controverted   in  a 
direct  proceeding. 

229.  Some  authorities  the  other  way. 

230.  Effect  of  the  rule. 

231.  Effect  of  appearance  and  attempt 

to  set  aside  default. 

232.  Effect  of  agreement  for  judgment; 

appearance    at    taking    deposi- 
tions; giving  special  bail. 

233.  Can  be  no  waiver  on  the  part  of 

an  infant. 

234.  Appearance  by  agreement  before 

justice  of  the  peace. 

235.  Party  may  expressly  waive   ser- 

vice of  process. 

236.  On    voluntary   appearance,   may 

demand  continuance,  when. 


PUBLICATION. 
219.  The  statute. 


SERVICE   BY    COPY. 

237.  How  made. 


220.  What  must  be  shown  by  the  affi-    238.  Meaning  of  term  "last  or  usual 

davit  for  publication.  place  of  residence." 

221.  How   long    publication   must   be 

made.  PROOF  OF  SERVICE. 

239.  The  statute. 
10 


146 


ACTIONS,  HOW   COMMENCED. 


[CHAP. 


240.  When  service  is  made  by  private 

individual. 

241.  Proof  of  service,  when  made  on 

party  out  of  state. 

242.  By    written    acknowledgment   of 

defendant  on  back  of  summons. 

243.  Officer's  return  must  be  attached 

to  or  indorsed  on  back  of  sum- 
mons. 

244.  Keturn  of  officer,  when  conclusive. 


245.  Proof  of  publication. 

246.  Proof  of  notice  given  out  of  court, 

247.  What  return  should  show. 

DEFECTIVE    PROCESS. 

248.  How  to  proceed  in  case  of  defec- 

tive process  or  service. 

249.  Agreed  case,  when  and  how  com- 

menced. 


203.  The  statute. — "A  civil  action  shall  be  commenced  by  filing 
in  the  office  of  the  clerk  a  complaint  and  causing  a  summons  to  issue 
thereon,  and  the  action  shall  be  deemed  to  be  commenced  from  the 
time  of  issuing  the  summons ;  but,  as  to  those  against  whom  publi- 
cation is  made,  from  the  time  of  the  first  publication."8 

204.  What  is  the  commencement  of  an  action. — The  filing 
of  the  complaint  alone  is  not  the  commencement  of  the  action,  nor  is 
the  issuing  of  summons  without  a  complaint  being  filed  sufficient. 
There  must  be  a  complaint  filed  first  and  a  summons  issued  before  the 
action  is  commenced.1" 

And  the  summons  is  not  issued  until  it  is  placed  in  the  hands  of  the 
sheriff  for  service.0 

205.  Summons  must  be  made  returnable  at  first  term  af- 
ter its  issue. — The  summons  must  be  made  returnable  at  the  first 
term  of  court  after  the  issuing  thereof,  otherwise  it  will  be  void.d 

It  was  otherwise  under  the  statute  of  1843,  which  provided  that  the 
summons  should  be  regarded  as  returnable  on  the  day  fixed  by  law, 
although  the  summons  was,  by  its  terms,  returnable  on  another  day.6 

But  an  action  may  be  brought  before  or  during  the  term,  and  a 


(a)  K.  S.  1881,  §  314. 

(b)  Ramsey   v.  Foy,    10   Ind.   493; 
The  State  v.  Clark,  7  Ind.  468;  Jerol- 
aman  v.  Foster,  28   Ind.  232;    Under- 
wood v.  Tatham,  1  Ind.  27G;  Hust  v. 
Conn,  12  Ind.  257;   Briggs  v.  Sneghan, 
45  Ind   14;  Temple  v.  Irvin,  34  Ind. 
412;  Hancock  v.  Ritchie,  11  Ind.  48; 
Xiblack    v.   Goodman,    67   Ind.   174; 
Fordice  v.  Hardesty,  36  Ind.  23;  The 
Charlestown  School  Township  v.  Hay, 
74  Ind.  127. 


(c)  Hancock  v.  Kitchie,  11  Ind.  48; 
Fordice  v.  Hardesty,  36  Ind.  23;  Evans 
v.  Galloway,  20  Ind.  479;  Harshman 
v.  Armstrong,  43  Ind.  126. 

(d)  Briggs  v.  Sneghan,  45  Ind.  14; 
Shirley  v.  Hagar,  3  Blkf.  225;  Crocker 
v.  Duncan,  6  Blkf.  535;  Carey  v.  But- 
ler, 11  Ind.  391 ;  Will  v.  Whitney,  15 
Ind.  194;  Biggsby  v.  Bowler,  17  Ind. 
167. 

(e)  Whitewater,   etc.,  Canal   Co,  v. 
Henderson,  3  Ind.  3. 


IX.]  ACTIONS,  HOW   COMMENCED.  147 

summons  issued  returnable  at  a  day  to  be  fixed  by  the  plaintiff  in  such 
term,  and  the  summons  will  be  valid.f  This  provision  does  not  apply 
to  divorce  cases.  (1) 

And  the  naming  of  a  wrong  day  in  the  term,  where  the  statute  makes 
all  summonses  returnable  on  the  first  day  of  the  term,  does  not  inval- 
idate the  writ.g 

206.  Summons   when    returnable  before  justice   of  the 
peace. — In  actions  before  justices  of  the  peace,  the  summons  must  be 
made  returnable  not  less  than  three  nor  more  than  thirty  days  from 
the  issuing. h 

But  in  actions  against  railroad  companies  for  kitting  stock,  the  sum- 
mons must  be  made  returnable  not  less  than  ten  days  after  suit  brought.1 
It  was  provided  by  the  acts  of  1861  that,  when  the  principal  office  of 
the  company  was  out  of  the  state,  the  summons  must  be  made  return- 
able not  less  than  fifteen  days  from  its  issuing.-*  But  the  supreme  court 
has  since  held  that  this  act  was  repealed  by  the  later  statute  fixing  the 
time  at  ten  days  in  such  cases,  thus  making  the  language  apply  to  cases 
for  killing  stock  instead  of  railroad  cases  generally.11 

In  computing  the  time  in  a  leap  year,  the  twenty-eighth  and  twenty- 
ninth  days  of  February  must  each  be  counted  as  a  day  in  this  statute.1 
In  some  cases,  it  has  been  held  that  they  should  be  counted  as  but  one 
day. 

207.  What  summons  must  contain.C2)  The  statute  provides 
that,  "  No  summons  or  the  service  thereof  shall  be  set  aside  or  be  ad- 
judged insufficient  where  there  is  sufficient  substance  about  either  to 
inform  the  party  on  whom  it  may  be  served  that  there  is  an  action  in- 
stituted against  him  in  court,  ilie  name  of  the  plaintiff  and  the  court,  and 
the  time  wJien  he  is  required  to  appear.™ 

If  the  language  of  this  statute  as  it  originally  stood  were  given  its 
full  force,  a  summons  could  hardly  be  so  defective  as  to  be  "  adjudged 
insufficient."  If  the  party  appears  and  objects  to  the  summons,  it  is 
evident  that  the  summons  and  its  service  would  have  been  sufficient  to 
inform  him  "that  there  is  an  action  instituted  against  him  in  court." 
But  the  statute  can  not  be  so  construed.  A  summons  issued  without 

(f)  K.  S.  1881,  §  516;  Vol.  3,  p.  322.        (1)  Helpenstein    v.   The  Vincennes 

(g)  Riggsbee  v.  Bowler,  17  Ind.  167;     National  Bank,  65  Ind.  582. 
Morgan  v.  Woods,  33  Ind.  23.  (m)  R.  S.  1881,  §  317.     The  words  in 

(h)  R.  S.  1881,  2  1451  ;  The  Michi-  italics  were  added  by  way  of  amend- 

gan,  etc.,  R.  R.  Co.  v.  Shannon,  13  Ind.  ment,  in  the  Code  of  1881.     Martin  v. 

171;  The  0.  &  M.  U.  R.  Co  v.  Hanna,  Cole,  38   Ind.  379;  Freeman  v.  Paul, 

16  Ind.  391.  105  Ind.  451. 

(i)  R.S.I 881.  §4026;  The  Michigan,  (1)  Eastes   v.  Bastes,   79   Ind.   363; 

etc.,  R.  R.  Co.  v.  Shannon,  13  Ind.  171.  Vol.  3,  p.  321. 

(j)  Acts  1861,  Spec.  Sess.,  p.  78.  (2)  Vol.  3,  p.  321. 

Ik)  The  Toledo,   etc.,  R.  R.  Co.  v. 
Shively,  26  Ind.  181. 


148  ACTIONS,  HOW   COMMENCED.  [CHAP. 

the  seal  of  the  court  attached  would  contain  the  same  information  as 
one  properly  attested,  but  the  summons  in  such  case  would  be  insuf- 
ficient. The  difference  between  a  summons  that  is  simply  irregular  or 
defective  in  form,  and  one  that  is  void,  must  be  kept  in  view.  In  the 
one  case  the  defect  can  only  be  reached  by  a  direct  proceeding,  and 
under  our  statute,  if  the  defect  is  not  such  that  the  summons  does  not 
inform  the  party  that  a  suit  is  instituted  against  him  in  court,  the  name 
of  the  plaintiff,  and  the  court  and  the  time  when  he  is  requested  to  ap- 
pear, it  can  not  be  reached  even  in  a  direct  proceeding.  It  is  not  de- 
fective under  the  statute.  But  where  the  summons  is  void,  the  defect 
may  be  reached  even  in  a  collateral  proceeding.  The  court  in  such 
case  has  no  jurisdiction  of  the  person.  No  action  is  commenced,  be- 
cause no  summons  has  been  served." 

The  summons  must,  by  the  express  terms  of  the  statute,  be  "  issued 
by  the  clerk,  under  the  seal  of  the  court,  must  be  directed  to  the 
sheriff,  and  must  notify  the  defendant  of  the  action  commenced,  the 
parties  thereto,  and  the  court  where  pending."0  If  the  summons  does 
not  contain  these  statutory  requirements,  it  will  be  defective  even 
under  section  317,  and  should  be  quashed  on  the  proper  motion.  But 
the  supreme  court  has  held  that,  although  the  summons  without  the 
seal  attached  is  defective,  the  absence  of  a  seal  does  not  render  the 
judgment  void,  but  merely  voidable,  and  the  summons  may  be  amended 
even  after  judgment. p 

208.  When  new  summons  must  issue  on  cross-complaint 
of  surety. — Where  suit  is  brought  against  two  or  more  apparently 
joint  makers  of  a  promissory  note,  and  one  of  the  defendants  sets  up, 
as  against  his  co-defendants,  that  he  is  surety  and  they  the  principals, 
such  cross-complaint  is  a  new  and  original  action  between  the  defend- 
ants, and  a  summons  must  issue  on  the  cross-complaint  as  in  other 
cases. q  But  this  is  not  necessary  "  if  the  other  defendants  are  present 
in  court,  in  person  or  by  attorney,  at  the  time  of  the  filing  of  the 
surety's  complaint,  and  have  actual  knowledge  thereof."1 

And  if  the  original  complaint  alleges  the  suretyship  it  would  seem 
that  no  summons  is  necessary.8  It  was  formerly  held  that  no  sum- 
mons was  necessary  upon  a  cross-complaint  of  suretyship  (Fentriss  v. 

(n)  Freeman  on  Judgments,  §  126;  Fletcher  v.  Holmes,  25  Ind.  458;  The 

Brooks  v.  Allen,  62  Ind.  401 ;  Stout  v.  State  v.  Ennis,  74  Ind.  17  ;  Browning 

Wood,  79  Ind.  108.  v.  Merritt,  61  Ind  425. 

(o)  R.  S.  1881,  §  314;   Wibright  v.  (q)  Boyd  v.  Fitch,  71  Ind.  306;  Hun- 

Nise,  4  Blkf.137;  Bick.  Civ.  Prac.  40.  ter  v.  Burnsville  Tp.  Co.,  56  Ind.  213. 

(p)  Joyce  v.  Whitney,  57  Ind.  550;  (r)  Joyce  v.  Whitney,  57  Ind.  550. 

The    State    v.    Davis,    73    Ind.    359;  (s)  Pattison  v.  Vaughn,  40  Ind.  253. 


IX.]  ACTIONS,  HOW    COMMENCED.  149 

The  State,  44  Ind.  271) ;  but  this  case  was  expressly  overruled  by 
the  case  of  Joyce  v.  Whitney,  aud  so  was  the  case  of  Pattison  v. 
Vaughn,  40  Ind.  253,  so  far  as  it  is  in  conflict  with  the  later  case. 
But  when  the  fact  of  suretyship  is  set  up  in  the  original  complaint, 
there  is  no  reason  for  requiring  summons  to  issue,  even  where  the  de- 
fendant alleged  to  be  the  surety  sets  up  the  suretyship  in  a  cross- 
complaint  asking  affirmative  relief. 

The  same  rule  that  requires  the  issuing  of  summons  in  this  class  of 
cases  applies  equally  to  all  cases  where  a  cross-complaint  is  filed. 

209.  Summons  must  issue  on  supplemental  complaint. — 
Where  a  supplemental  complaint  is  filed,  and  new  parties  defendant 
made,  summons  must  issue  for  such  new  parties  as  in  other  cases.  It 
has  also  been  held,  by  the  supreme  court,  that  where  a  supplemental 
complaint  is  filed,  alleging  that  one  of  the  original  defendants  has  ac- 
quired a  new  interest  in  the  subject-matter  of  the  action  since  the  filing 
of  the  original  complaint,  in  order  to  bind  such  after-acquired  interest, 
a  new  summons  must  issue  and  be  served  on  such  defendant.1 

The  court  say :  "  It  is  claimed  that  it  was  error  to  proceed  upon  the 
supplemental  complaint  against  Mrs.  West,  without  summoning  her  to 
answer  it,  she  having,  by  the  death  of  her  husband  after  the  com- 
mencement of  the  suit,  acquired  an  additional  interest,  and  the  hus- 
band never  having  had  notice.  I  am  of  the  opinion  that  this  point  is 
well  taken.  Such  was  the  chancery  practice,  and  I  perceive  nothing  in 
the  code  to  change  it." 

In  this  opinion  three  of  the  judges  concurred ;  the  remaining  mem- 
ber of  the  court  dissented,  without  filing  a  dissenting  opinion.  The 
soundness  of  this  rule  may  well  be  doubted. 

Where  a  party  is  once  in  court,  served  with  process,  he  should  be 
regarded  as  in  court  for  all  purposes,  and  there  is  no  reason  why  the 
filing  of  a  supplemental  complaint  should  entitle  a  defendant  to  a  sec- 
ond notice  any  more  than  an  amendment  to  the  original  complaint, 
which  may,  under  our  practice,  change  entirely  the  cause  of  action.11 
The  ground  upon  which  the  court  held  that  a  new  summons  was 
necessary  was  that  as  the  husband,  who  owned  the  interest  in  the  land  at 
the  time  the  action  was  brought,  had  not  been  served  with  process,  the 
interest  owned  by  him  was  not  represented  in  the  action  when  it  was 
inherited  by  the  wife,  and  that  such  interest  could  only  be  bound  by 
summons  upon  the  owner.  If  the  husband  had  been  served  the  wife 
would  have  taken  the  land,  under  the, view  taken  by  the  court,  pendente 
lite,  and  would  have  been  bound  by  any  judgment  subsequently  ren- 

(t)  M*.1,in  v.  Noble,  29  Ind.  216.  (u)  Burr  v.  Mendenhall,  49  Ind.  496. 


150  ACTIONS,  HOW   COMMENCED.  [CHAP. 

dered.  This  would  have  been  true,  undoubtedly,  if  the  wife  had  not 
been  in  court  as  a  party  to  the  action,  and  bound  to  take  notice  of  all 
proceedings  had  therein. 

The  question,  so  far  as  I  know,  has  not  been  passed  upon  since  the 
case  cited,  and  the  rule  there  laid  down  must  be  regarded  as  the  law. 

SERVICE    OF   SUMMONS. 

210.  The  statute. — "  Sec.  315.    The  summons  shall  be  served  either 
'  personally  on  the  defendant,  or  by  leaving  a  copy  thereof  at  his  usual 

or  last  place  of  residence.  An  acknowledgment  on  the  back  of  the 
process,  or  the  voluntary  appearance  of  a  defendant,  is  equivalent  to 
service.  Process  against  persons  of  unsound  mind  shall  be  served  upon 
the  guardian  of  such  persons,  if  there  be  a  guardian.  If  no  guardian 
shall  have  been  appointed,  then  such  process  shall  be  served  by  copy 
upon  the  superintendent  of  the  hospital  in  which  such  person  shall  be 
confined,  or  upon  the  person  having  charge  or  custody  of  such  person, 
in  which  case,  upon  proof  of  the  insanity  of  the  defendant,  the  court 
shall  appoint  a  guardian  ad  litem  for  such  defendant,  whose  duty  it 
shall  be  to  make  proper  defense  to  such  action." v 

This  statute  does  not  provide  by  whom  the  service  shall  be  made, 
but  the  supreme  court  has  held  that  the  service  must  be  made  either 
by  the  sheriff  of  the  county  or  his  deputy. w 

It  has  been  held,  however,  that  a  sheriff  may  appoint  a  person  to  do 
a  particular  act ;  as,  for  instance,  to  serve  a  particular  writ,  and  that 
the  act  of  such  person  will  be  valid,  although  he  may  not  have  taken 
the  oath  required  in  case  of  a  general  deputy. x 

These  cases  are  not  referred  to  in  the  case  of  Kyle'  v.  Kyle,  but  the 
court  must  have  used  the  term  deputy  with  a  view  to  the  former  de- 
cisions of  the  court.  The  authorities  cited,  settle  the  question  very 
clearly,  that  a  service  made  by  a  special  deputy,  who  has  not  been  sworn, 
is  valid.  In  the  case  of  Kyle  v.  Kyle,  there  was  no  such  question  be- 
fore the  court.  There  was  nothing  in  the  record  to  show  that  the  person 
serving  the  summons  had  any  authority  from  the  sheriff. 

211.  Summons,  how  served  when  defendant  resides  out 
of  the  state. — When  the  defendant  is  a  non-resident  of  the  state, 
the  summons  may  be  served  upon  him  by  any  person,  without  having 
any  authority  from  the  sheriff*  to  make  it,  but  the  service  must,  in  such 

(v)  R.  S.  1881,  §  315.  .  Groom?,  9  Ind.  243;  Shattuck  v.  The 

(w)  Kyle  v.  Kyle,  55  Ind.  387.  State,  11  Ind.  473;    Patterson   v.  The 

(x)  Proctor  v.  Walker,  12  Ind.  660;  State,  10  Ind.  296. 
The   New  Albany,  etc.,   R.  R.  Co.  v. 


IX.]  ACTIONS,  HOW   COMMENCED.  151 

case,  to  make  it  valid,  be  made  out  of  the  state, y  and  the  service 
so  made  is  not  equivalent  to  personal  service  in  the  state,  and  no  per- 
sonal judgment  can  be  taken  under  it.  It  has  the  same  force  and  effect 
as  service  by  publication.  z(l) 

212.  Service  on  infants. — Summons  must  be  served  on  infants 
the  same  as  on  other  defendants.* 


HOW  SERVED   ON   CORPORATIONS. 

213.  The  statute. — The  statute  provides:     "Sec.  316.  The  pro- 
cess against  either  a  domestic  or  foreign  corporation  may  be  served 
upon  the  president,  presiding  officer,  mayor,  chairman  of  the  board  of 
trustees,  or  other  chief  officer,  or,  if  the  chief  officer  is  not  found  in 
the  county,  then  upon  its  cashier,  treasurer,  secretary,  clerk,  general 
or  special  agent,  or,  if  it  is  a  municipal  corporation,  upon  its  marshal, 
or,  if  it  is  au  incorporated  library  company,  upon  its  librarian ;  if  none 
of  the  aforesaid  officers  can  be  found,  then  upon  any  person  authorized 
to  transact  business  in  the  name  of  such  corporation ;  or,  if  no  such 
person,  officer,  or  agent  be  found  in  the  county  where  suit  is  pending, 
process  may  be  sent  for  service  to  any  other  county  in  the  state  where 
such  person,  officer,  or  agent  may  be  found.     Provided  however,  that 
process  shall  not  be  served  upon  any  such  person,  officer,  or  agent, 
when  he  is  plaintiff  in  the  suit,  but   in  such  cases  process  shall  be 
served  upon  some  other  such  person,  officer,  or  agent  of  the  corpora- 
tion than  such  plaintiff,  and,  in  case  the  defendant  be  a  foreign  corpora- 
tion, having  no  such  person,  officer,  or  agent  resident  in  the  state,  serv- 
ice may  be  made  in  the  same  manner  as  against  other  non-residents. "b 

214.  Officers  upon  whom  service  may  be  made. — It  has 
been  held  that,  by  this  section,  there  are  three  classes  or  grades  of 
officers  upon  whom  service  may  be  made : 

First.  The  president,  presiding  officer,  mayor,  or  chairman  of  the 
board  of  trustees,  who  are  chief  officers. 

Second.  Cashiers,  treasurers,  secretaries,  clerks,  general  or  special 
agents,  or,  in  case  of  a  municipal  corporation,  its  marshal,  or,  if  it  be 
a  library  company,  its  librarian. 

(y)  K.  S.  1881,  \  319;  Kyle  v.  Kyle,  (a)  De  La  Hunt  v.  Holderbaugh,  58 

55  Ind.  387;  Allen  v.  Cox,  11  Ind.  383.  Ind.  285;  Abdil  v.  Abdil,  26  Ind.  287; 

(z)  E.  S.  1881,  §  390;   Allen  v.  Cox,  Hough  v.  Canby,  8  Blkf.  301 ;  Due  v. 

11  Ind.  383.  Anderson,  5  Ind.  33. 

(1)  Form  of  affidavit  of  service,  Vol.  (b)  R.  S.  1881,  §  316. 
3,  p.  323. 


152  ACTIONS,  HOW    COMMENCED.  [CHAl1. 

Third.  Any  person  authorized  to  transact  business  in  the  name  of 
such  corporation. 

Service  must  be  made  on  an  officer  of  the  first  class,  if  one  can  be 
found ;  if  not,  on  one  of  the  second  class.  If  neither  an  officer  of  the 
first  nor  second  class  can  be  found,  then  upon  one  of  the  third  class ; 
and,  where  service  is  made  on  the  second  class,  it  must  be  shown 
that  no  officer  of  the  first  class  can  be  found ;  and,  if  made  on  the 
third  class,  that  neither  an  officer  of  the  first  nor  second  class  can  be 
found.0 

But  it  was  held  in  the  same  case  that,  under  the  act  of  March  4, 
1853,  as  amended  by  the  acts  of  1861,  Special  Session,  p.  78,  service 
might  be  made  on  either  of  the  officers  or  persons  named  in  the  act 
when  the  principal  office  of  the  company  is  not  in  this  state,  and  that 
all  of  such  persons  must  be  regarded  as  belonging  to  one  class.  The 
persons  named  in  the  act  are  "any  officer,  director,  conductor,  attorney, 
or  general  agent  of  the  company." 

215.  In  actions  against  railroad  companies  for  killing  stock. 
— In  actions  against  railroad  companies  for  killing  stock,  the  service 
may  be  made  *>n  "  any  conductor  on  any  train  on  said  road  passing  into 
or  through  the  county  in  which  the  stock  was  killed. "d 

But  the  statute  does  not  require  that  service  shall  be  upon  a  con- 
ductor. It  may  be  on  any  of  the  officers  or  persons  named  in  sec- 
tion 316.e 

And  service  upon  a  conductor  is  good  against  the  company,  where 
the  road  is  being  operated  by  a  receiver  and  the  conductor  is  in  his 
employ/ 

216.  In  actions  to  enforce  liens  against  boats  and  other 
water-crafts. — In  actions  to  enforce  liens  against  boats,  vessels,  and 
other  water-crafts,  growing  out  of  contracts  made  in  this  state,  and  for 
injuries  to  persons  or  property  in  connection  with  such  business  in  this 
state,  the  summons  may  be  served  upon  the  officer  or  consignee  mak- 
ing the  contract,  or,  if  they  can  not  be  found,  upon  the  clerk;  or,  if 
he  can  not  be  found,  upon  any  other  officer  of  the  boat,  vessel,  or 
water-craft,  or  any  person  having  charge  thereof;  or,  if  that  can  not 

(c)  The  Toledo,  etc.,  R.  R.  Co.  v.  v.  Tilton,  12  Ind.  3;  The  New  Albany, 
Owen,  43  Ind.  40o.  etc.,  R.  R.  Co.  v.  Grooms,  9  Ind.  243. 

("d)  R.  S.  1881,  §  4027;  The  New  Al-         (e)  The  Jeffersonville,  etc.,  R.  R.  Co. 
bany.  etc.,  R.  R.  Co.  v.  Powell,  13  Ind.     v.  Ounlap,  29  Ind.  426. 
373;  The  New  Albany,  etc.,  R.  R.  Co.         (f)  The  Louisville,  etc.,  R.  R.  Co.  i\ 

Cauble,  46  Ind.  277 ;  R.  S.  1881,  §  402a 


IX.]  ACTIONS,  HOW  COMMENCED.  153 

be  done,  by  affixing  a  copy  of  the  summons  in  some  conspicuous  place 
on  the  boat  or  vessel.8 

217.  In  mandamus. — In  actions  for  mandamus  the  original  writ 
must  be  left  with  the  defendant,  and  the  return  made  on  a  certified 
copy.     The  service  by  leaving  a  certified  copy  is  not  sufficient,  but 
where  there  is  more  than  one  defendant  the  original  writ  may  be  served 
on  one,  and  certified  copies  on  the  others. h 

218.  In  actions  against  townships. — In  actions  against  town- 
ships it  is  required  by  statute  that  the  summons  shall  be  served  by 
leaving  a  certified  copy  thereof  with  the  township  trustee  at  least  ten 
days  before  the  return  day  of  such  summons.1 

PUBLICATION. 

219.  The  statute.  — "  Sec.  318.  The  clerk,  by  order  of  the  court, 
if  in  session  or  in  vacation,  without  such  order,  shall  cause  a  notice  of 
the  pendency  of  any  action,  and  the  term  at  which  the  same  will  stand 
for  trial,  to  be  published  for  three  weeks  successively,  in  some  news- 
paper of  general  circulation,  named  by  the  plaintiff  or  his  attorney, 
printed  in  the  English  language,  and  published  in  the  county,  or,  if 
none  be  printed  or  published  therein,  then  in  the  county  in  this  state 
nearest  thereto  in  which  any  such  paper  may  be  printed,  in  either  of 
the  following  cases,  shown  by  affidavit : 

"First.  Where  the  defendant  is  a  foreign  corporation,  and  has  prop- 
erty within  the  state,  or  the  cause  of  action  arose  therein. 

"Second.  Where  the  defendant,  being  a  resident  of  this  state,  has  de- 
parted therefrom,  with  intent  to  defraud  his  creditors,  or  to  avoid  the  ser- 
vice of  the  summons,  or  keeps  himself  concealed  therein  with  a  like  intent. 

"Third.  Where  the  defendant  is  not  a  resident  of  this  state,  and 
the  cause  of  action  is  founded  upon  or  connected  with  a  contract,  or 
arises  from  a  duty  imposed  by  law  in  relation  to  real  estate  in  this 
state,  or  the  object  of  the  action  is  to  enforce  or  discharge  a  lien,  or 
to  obtain  a  divorce,  or  to  try  and  determine  or  quiet  the  title  to  or  pos- 
session of  real  estate  or  any  interest  therein,  or  to  enforce  the  collection 
of  any  demand  by  proceedings  in  garnishment  or  attachment. 

"Fourth.  Where  the  residence  of  any  defendant,  upon  diligent  in- 
quiry, is  unknown. 

"Fifth.  Where  the  name  of  any  defendant  is  unknown,  and^  he  is 
believed  to  be  a  non-resident. "J 

(g)  R.  S.  1881,  g§  5277,  5284.  (i)  R.  S.  1881,  §  6003. 

(h)  R.  S.  1881,  §  1169;  The  Board  of        ( j)  R.  S.  1881,  §  318. 
Comm'rs,  etc.,  v.  The  State,  61  Ind.  75. 


154  ACTIONS,  HOW   COMMENCED.  [CHAP. 

This  section  is  materially  changed  in  the  revision  of  the  code.  As 
it  was  originally,  it  could  not  be  reconciled  with  itself.  The  first  clause 
of  the  section  clearly  provided  that  the  affidavit  for  publication  should 
show  that  the  action  was  in  relation  to  real  estate,  while  the  causes  which 
must  be  set  out  in  the  affidavit  as  clearly  indicated  that  the  publication 
might  be  made  in  other  cases,  as,  for  instance,  in  the  third  clause 
it  must  be  in  a  cause  of  action  founded  upon  or  connected  with  a  contra  ft. 
or  arising  from  a  duty  imposed  by  law,  or  the  object  of  the  action  is  to  en- 
force or  discharge  a  lien  or  to  obtain  a  divorce. 

The  amendment  leaves  out  the  provision  in  the  original  section  that 
an  affidavit  shall  be  filed  showing  "  that  a  cause  of  action  exists 
against  any  defendant,  or  that  he -is  a  necessary  party  in  an  action  re- 
lating to  real  estate,"  and  makes  it  the  duty  of  the  clerk  to  cause  the 
notice  to  be  given  in  the  causes  enumerated  in  the  section  shown  by 
affidavit. 

220.  What  must  be  shown  by  the  affidavit  for  publica- 
tion. (D  It  was  held  by  the  supreme  court,  in  an  early  decision  under 
the  section  as  it  originally  stood,  that  the  affidavit  for  publication  need 
not  set  out  the  cause  of  action.k 

But  in  a  later  case  the  one  just  cited  was  overruled,  and  it  was  held 
that  section  38  of  the  statute  must  be  complied  with,  and  if  the  affi- 
davit failed  to  state  the  cause  of  action  the  publication  would  be  void, 
and  the  court  would  have  no  jurisdiction.1  The  affidavit  in  this  case 
was  as  follows :  "  John  Caven,  being  sworn,  upon  his  oath  says  that  he 
is  informed  and  believes  that  the  defendant,  Matilda  Fountain,  is  not 
a  resident  of  the  State  of  Indiana." 

It  will  be  noticed  that  this  affidavit  does  not  state  the  cause  of  ac- 
tion, nor  does  it  state  generally  that  it  is  in  relation  to  real  estate. 
The  court,  after  quoting  the  affidavit  and  the  section  of  the  statute, 
say :  "  The  suit  of  the  Building  and  Loan  Fund  Association  above 
mentioned  was  to  enforce  a  lien  upon  real  estate.  The  plaintiff  in 
this  suit,  Matilda  Fountain,  was  a  necessary  party  to  that  suit,  and 
she  was  a  non-resident.  Both  of  these  latter  facts  should  have  been 
shown  in  the  affidavit  to  obtain  an  order  of  publication.  Both  were 
equally  material,  and  the  omission  of  either  rendered  the  affidavit  fa- 
tally defective." 

This  decision  requires  two  things  to  be  shown  by  the  affidavit :  first, 
the  ca'use  of  action  in  the  terms  of  the  statute,  that  it  was  to  enforce 
a  lien  upon  real  estate ;  second,  that  the  defendant  was  a  necessary 
party  to  the  suit  and  a  non-resident.  (2) 

(k)  Trew  v.  Gaskell,  10  Ind.  265.  (2)  A  judgment  against'a  resident  on 

(1)   Fountain  v.  Huston,  58  Ind.  316.     constructive  notice  is  void.     Brown  v- 
(1)  Vol.  3,  p.  324.  Goble,  97  Ind.  86. 


IX.]  ACTIONS,  HOW   COMMENCED.  155 

The  law  as  declared  by  the  court  is  not  applicable  to  the  amended 
section.  It  does  not  require  that  the  affidavit  shall  show  that  the 
party  against  whom  publication  is  asked  is  a  necessary  party  to  the  ac- 
tion, nor  is  it  necessary  in  every  case  that  the  cause  of  action  should 
be  stated. 

Under  the  first,  second,  and  fourth  clauses,  where  publication  is  au- 
thorized, it  is  not  made  necessary  that  the  cause  of  action  should  be 
stated.  It  is  otherwise  under  the  third  It  must,  under  that  clause, 
be  shown  that  the  defendant  is  "  not  a  resident  of  the  state,"  and  either 
that  the  cause  of  action  is  "founded  upon  or  connected  with  a  con- 
tract," or  "arises  from  a  duty  imposed  by  law,  in  relation  to  real  es- 
tate," or  "  to  enforce  or  discharge  a  lien,"  or  "  to  try  and  determine  or 
quiet  the  title  or  possession  of  such  real  estate  or  any  interest  therein," 
or  "to  enforce  the  collection  of  any  demand  by  proceeding  in  garnish- 
ment or  attachment." 

As  the  section  now  stands  it  is  not  necessary,  in  actions  against  for- 
eign corporations,  that  the  affidavit  should  show  what  the  cause  of 
action  is,  but  it  must  be  shown  either  that  the  corporation  "  has  prop- 
erty within  the  state,"  or  that  the  "  cause  of  action  arose  therein." 

.The  result  is,  that  publication  may  be  made  where  there  are  officers 
or  agents  of  the  corporation  in  the  state  where  personal  service  might 
be  had  upon  them  under  section  316  of  the  code,  which  also  provides 
that  where  no  such  officers  or  agents  reside  in  the  state,  "  service  may 
be  made  in  the  same  manner  as  against  other  non-residents."  m 

Section  318  should  have  required  that  in  case  of  foreign  corporations 
the  affidavit  should  show  that  there  are  no  officers  or  agents  of  the  cor- 
poration resident  in  the  state  upon  which  personal  service  can  be  had. 
The  fourth  and  fifth  causes  for  publication  are  added  as  an  amendment. 
The  wisdom  of  this  amendment  may  well  be  doubted.  The  fourth 
simply  requires  that  the  affidavit  shall  show  that  "  the  residence  of  any 
defendant,  on  diligent  inquiry,  is  unknown;"  and  the  fifth  "that  the 
name  of  any  defendant  is  unknown,  and  he  is  believed  to  be  a  non- 
resident." 

The  nature  of  the  cause  of  action  is  not  required  to  be  shown.  If 
it  should  turn  out  that  the  defendant  is  a  non-resident,  and  the  action 
is  personal,  no  judgment  could  be  taken  against  him.  If  he  should,  in 
fact,  be  a  resident  of  the  state,  but  of  another  county,  the  result  would 
be  the  same.(l) 

Where  the  defendant  is  a  non-resident,  the  affidavit  is  required, 
under  the  third  clause,  to  show  what  the  cause  of  action  is.  This 

(m)  K.  S.  1881,  §  316.  (1)  Brown  v.  Goble,  97  Ind.  8$. 


156  ACTIONS,  HOW   COMMENCED.  [CHAP. 

should  also  have  been  required  where  he  is  believed  to  be  a  non-resident, 
under  the  fifth  subdivision.  (1) 

- 

221.  How  long  publication   must   be    made. —  Publication 
must  be  made  thirty  days  before  the  return  day ;  and  the  thirty  days 
commence  to  run  after  three  weeks'  publication.     The  time  required, 
therefore,  to  give  the  necessary  notice  is  fifty-one  days.n 

HOW   DEFECTS   IN   SERVICE  WAIVED. 

222.  By  appearance. — It  is  not  always  necessary  to  the  com- 
mencement of  an  action  that  a  summons  should  issue  or  publication  be 
made.     Either  may  be  waived  by  a  defendant  who  is  not  laboring 
under  any  disability,  and  the  failure  to  serve  the  summons,  or  any  de- 
fect in  the  summons  or  its  service,  may  also  be  waived. 

The  appearance  of  the  defendant  is  a  waiver  of  the  issuing  of  the 
summons,  or  any  defects  in  its  issuing  or  service,  and.  any  defects  in 
publication.0 

The  fact  that  the  defendant,  at  the  time  he  entered  his  appearance, 
is  ignorant  of  the  defect  in  the  process,  does  not  change  the  effect  of 
his  appearance. p 

But  in  order  that  an  appearance  to  an  action  shall  constitute  such  a 
waiver,  it  must  be  a  full  appearance. 

223.  Special  appearance  does  not  waive  defects. — A  special 
appearance  may  be  entered  for  the  very  purpose  of  taking  advantage 
of  the  want  of  a  summons  or  publication,  or  any  defects  therein. q 
Such  an  appearance  is  not  a  waiver.     It  is  therefore  important  that 
where  the  appearance  is  special  the  record  should  show  that  fact,  and 
disclose  the  purpose  for  which  the  appearance  is  entered. 

224.  "What  constitutes  an  appearance. — To  constitute  an  ap- 

(1)  As  to  the  kind  of  actions  in  which  constructive  notice  may  be  given,  see 
Beck  v.  Koester,  79  Ind.  135 ;  Acts  1885,  p.  157. 

(n)  R.  S.  1881,  §318;  Loughridger.  State,  61  Ind.  75;  Jones  v.  Martin,  5 

The  City  of  Huntington,  56  Ind.  253.  Blkf.  278;    Dudley    r.  Fisher,  7  Blkf. 

(o)  Hustr.  Conn,  12  Ind.  257;  R.  S.  553;   McCarthy  v.  McCarthy.  60  Ind. 

1881,  §  315;  The  New  Albany,  etc.,  R.  128;  Shirley  v.  Hager,  3  Blkf.  225. 

R.  Co.  v.  Comb?,  13  Ind.  490;   The  City  (p)  Pixley  v.  Winchell,  17  Am.  Dec. 

of  Cm \vfordsville  r.  Hays,  42  Ind.  200;  525,  and  cases  cited. 

Free  v.  Haworth,  19  Ind  404;   Albert-  (q)  The   New  Albany,   etc.,  R.  W. 

son  v.  AVilliams,  23  Ind.  612;  Temple-  Co.   v.   Combs.  13    Ind.  490;    Hust  v. 

ton  v.  Hunter.  10  Ind.  380;  The  State  Conn,  12  Ind.  257;   Root  v.  Monroe,  5 

v.  H'olmes.  69  Ind.  577;   Freeman  on  Blkf.   594;    Carson  v.  The  Steamboat 

Judgments,  §126;  The  Louisville,  etc  ,  Talma, 3  Ind.  194;  Campbell  v.  Swasey, 

R.  W.  Co.  v.  Nicholson,  60  Ind.  158;  12  Ind.  70;  Hutchins  v.  Latimer,  5  Ind. 

The    Board   of   Comm'rs.   etc.',  v.  The  67. 


IX.]  ACTIONS,  HOW    COMMENCED.  157 

pearance  to  the  action,  there  must  be  some  formal  entry,  plea,  motion, 
or  official  act,  and  this  should  be  of  record.1" 

Filing  a  demurrer  to  the  complaint  constitutes  a  full  appearance  to 
the  action.3 

225.  An  agreement  indorsed  on   the  complaint  -waiving 
process  not  an  appearance. — In  the  case  of  McCormack  v.  The 
First  National  Bank  of  Greensburg,  53  Ind.  466,  the  defendants  in- 
dorsed on  the  complaint  in  vacation :  "We  hereby  enter  an  appear- 
ance to  the  foregoing  action,  and  waive  the  issuing  and  service  of  pro- 
cess."   The  court  held   that  the  indorsement  was  not  sufficient  to 
constitute  an  appearance  to  the  action,  and  the  issuing  of  a  summons 
was  not  waived  thereby. 

The  decision  is  placed  on  the  ground  that  the  indorsement  was  made 
in  vacation,  and  was  not  "  a  formal  entry  or  plea  or  motion  or  official 
act,"  that  appeared  of  record.  The  case  seems  to  be  a  strong  one,  being 
against  the  express  agreement  of  the  defendants  to  waive  the  summons 
and  its  service,  but  it  is  in  strict  conformity  with  a  long  line  of  decis- 
ions, and  is  but  an  application  of  the  well-settled  rule :  No  act  done 
by  the  defendant  in  vacation  can  amount  to  such  an  appearance  to  the 
action  as  will  give  the  court  jurisdiction  of  the  person. 

226.  Appearance  may  be  in  person  or  by  attorney. — The 
appearance  may  be  by  the  defendant  in  person  or  by  attorney.' 

227.  Appearance  by  attorney  without  authority. — The  ques- 
tion sometimes  arises,  however,  whether  the  attorney  who  appears  has 
the  proper  authority,  and  whether  the  defendant  can,  after  judgment, 
avoid  the  effect  of  the  attorney's  appearance,  by  showing  that  he  was 
not  authorized.     The  adjudicated  cases  on  the  point  are  very  numer- 
ous, and  the  weight  of  authority  is  against  the  right  to  question  the 
authority  of  the  attorney  in  a  collateral  proceeding,  except  upon  the 
ground  of  fraud." 

228.  When  attorney's  authority  to  appear  can  be  contro- 

(r)  Scott  v.  Hull,  14  Ind.  130 ;  Shir-  City  of  Crawfordsville  v.  Hays,  42  Ind. 

ley  v.  Hagar,  3  Blkf.  225  ;  Root  t\  Mon-  200. 

roe,  5  Blkf.  594;  Carson  «.  The  Steam-  (t)   Bush    v.    Bush,    46    Ind.    70;    3 

boat  Talma,  3  Ind.  194;  Robinson  v.  Estee's  Plead,  and  Forms,  43;  Henck 

The    Board   of    Comm'rs   of  Vander-  v.  Todhunter,  16  Am.  Dee.  300. 

burg  County,  37   Ind.  333;  Rhodes  v.  (u)   Bush  v.  Bush,  46   Ind.    70,  83; 

Delaney,  50  Ind.  468;  McCormack  v.  The  Floyd  County  Agricultural  Ass'n 

The  First  National  Bank,  53  Ind.  466.  v.  Tompkins,  23   Ind.  348;    Wiley  v. 

(*)  Knight  r.  Low,  15  Ind.  374;  The  Pratt,  23  Ind.  628;  Coon  v.  Welborn, 

83  Ind.  230. 


158  ACTIONS,  HOW    COMMENCED,  [CHAP. 

verted  in  a  direct  proceeding. — Whether  such  authority  can  be 
denied  in  a  direct  proceeding  is  a  more  serious  question,  and  one  upon 
which  the  authorities  are  conflicting.  In  Indiana  the  rule  is  very 
clearly  and  fully  stated  in  the  case  of  Wiley  v.  Pratt. v  The  court  say : 
"  We  think  the  rule  should  be  stated  thus :  Where  a  judgment  is  re- 
covered in  a  court  of  general  jurisdiction  against  a  defendant,  and  the 
record  shows  that  an  attorney  of  the  court  appeared  for  the  defendant 
and  filed  an  answer,  the  jurisdiction  of  the  court  can  not  be  contro- 
verted, unless  it  be  by  proof  of  fraud,  which  we  are  not  in  this  case% 
required  to  decide,  or  that  the  defendant  was  not  a  citizen  of  the  state, 
nor  during  the  pendency  of  the  proceedings  within  the  jurisdiction  of 
the  court  in  which  the  judgment  was  rendered,  and  has  neither  been 
notified  of  the  pendency  of  the  suit  nor  had  given  authority  to  the  at- 
torney to  enter  an  appearance  for  him.  .  .  .  While,  however,  a 
party  is  permitted  to  controvert  the  authority  of  the  attorney  to  appear 
for  him  when  he  was  without  the  jurisdiction  of  the  court  rendering 
the  judgment,  and  upon  establishing  the  fact  that  the  appearance  was 
unauthorized  is  relieved  from  the  enforcement  of  the  judgment,  this 
relief  will  not  be  granted  where  the  defendant  was  within  the  jurisdic- 
tion of  the  court,  and  an  unauthorized  appearance  has  been  entered  for 
him  by  counsel,  unless  he  can  establish  a  defense  on  the  merits,  to  the 
cause  of  action  in  which  the  judgment  was  rendered.  And  this  rule 
i*  a  reasonable  one. 

"Where  the  defendant  has  not  been  within  the  jurisdiction  of  the 
court,  it  would  not  be*  just  to  compel  him  to  come  under  that  jurisdic- 
tion and  establish  his  defense  to  the  action,  in  order  to  obtain  relief 
from  a  judgment  obtained  without  notice ;  and,  therefore,  the  relief 
granted  him  must  be  absolute  immunity  from  the  judgment.  But 
where  the  party  was  within  the  reach  of  the  process  of  the  court,  al- 
though not  served  with  notice,  and  an  appearance  has  been  entered  for 
him  by  an  attorney,  the  court  may  well  require  him  to  aver,  in  his 
proceedings  to  obtain  relief  from  the  judgment,  that  he  has  a  defense 
to  the  action,  and  if  no  rights  of  bona  fide  purchasers  have  intervened, 
the  court  will  stay  proceedings  under  the  judgment,  while  it  preserves 
its  lien,  and  permit  the  party  to  make  his  defense  to  the  original  action, 
and  to  the  extent  he  may  succeed  in  that  defense  relieve  him  from  the 
effect  of  the  judgment."  w 

(v)  Wiley  v.  Pratt,  23  Ind.  628.  Ohio,  518;  Brenton  v.  Lyfield,  37  N. 

( w)  Wiley  v.  Pratt.  23  Ind.  633,  635 ;  H:  512  ;  Sterne  v.  Bentley,  3  How.  Pr. 

Pierson  v.  Holman,  5  Blkf.  482;  Bush  442;  Ellsworth  v.  Campbell,  31  Barb. 

r.  Bush,  46  Ind.  70;  Denton  v.  Noyes,  6  (8.  C.)  134;  Denton  v.  Noyes,  5  Am. 

Johns.  296;  Critchfield  v.  Porter,  3  Dec.  237,  and  note;  Brown  v.  Nichols, 


IX.]  ACTIONS,  HOW   COMMENCED.  159 

229.  Some  authorities  the  other  way  —While  the  authorities 
supporting  the  rule  laid  down  in  Denton  v.  Noyes,  and  followed  by 
our  supreme  court,  are  very  numerous,  there  are  many  decisions  the 
other  way.1 

230.  Effect  of  the  rule. — The  effect  of  the  rule  adopted  in  this 
state,  so  far  as  it  applies  to  the  question  now  under  consideration  is, 
that  where  the  defendant  is  not  within  the  jurisdiction  of  the  court  and 
has  had  no  notice  of  the  pendency  of  the  action,  the  appearance  of  an 
attorney  without  authority  does  not  waive  the  failure  to  issue  and  serve 
the  summons,  or  make  publication.     He  may,  in  such  case,  set  aside 
the  appearance  so  entered,  without  submitting  to  the  jurisdiction  of 
the  court.      But  where  the  defendant  resides  within  the  jurisdiction  of 
the  court,  or  has  actual  notice  of  the  pendency  o/  the  action,  an  appear- 
ance by  an  attorney  who  has  no  authority  to  appear,  is  so  far  binding 
upon  him  as  to  waive  any  defect  in  the  process  or  its  service.     He  may, 
by  showing  the  want  of  authority  of  the  attorney  to  appear,  and  that 
he  has  a  good  and  meritorious  defense  to  the  action,  have  leave  to  prove 
such  defense,  and  if  the  defense  is  established,  the  judgment  will  be 
changed  or  modified  accordingly,  but  by  the  very  act  of  applying  for 
such  relief,  he  submits  himself  to  the  jurisdiction  of  the  court,  and 
waives  the  service  of  process,  if  this  has  not  already  been  done  by  the 
appearance  of  the  attorney,  so  that  the  effect  upon  his  rights,  so  far  as 
the  service  of  process  is  concerned,  would  be  the.  same  in  either  case. 

231.  Effect  of  appearance  and  attempt  to  set  aside  de- 
fault.— An  appearance  after  judgment  by  default,  and  an  ineffectual 
attempt  to  set  aside  the  default,  does  not  operate  as  a  waiver  of  defects 
in  the  process. y 

232.  Effect  of  agreement   for  judgment ;   appearance   at 
taking    depositions  ;    giving    special   bail. — An   agreement  to 
allow  judgment  to  be  rendered  in  a  cause,  and  the  rendition  of  the 
judgment  in  accordance  with  the  agreement,  waives  any  defects  in  the 

process.2 

42  X.  Y.  20;  Cox  v.  N.  Y.  Central  R.  v.  U.  S.  Bank,  9  "Wheat.  829;  Shelton 

R.  Co.,  63  N.  Y.  419 ;  Spalding  v.  Swift,  v.  Tiffin,  6  How.  186 ;  Compiler  v.  Ana- 

18  Vt.  214;    Cyphert   v.  McClure,  22  wait,  2  "Watts,  490 ;  Campbell  v.  Kent, 

Pa.  St.   195;    3    Estee's    Plead,    and  3  Pa.  St.  75;    Sherrard   v.  Nevins,   2 

Forms,  43,  44;    Coon  v.  Welborn,  83  Carter,  241;  Miller  v.  Gaskins,  3  Rob- 

Ind.  230.  inson,  94. 

ix)  Meachan    v.   Dudley,   6   Wend.        (y)   Mills  v.  The  State,  10  Ind.  114. 
515;  Merit  v.  dough,  2  Tex.  582,  588;         (z)  Collins  v.  Rose,  59  Ind.  33. 
Harsbey  v.   Blackman,  20  Iowa,  161; 
Price  r.  Ward,  1  Dutch,  225;  Osborn 


160  ACTIONS,  HOW   COMMENCED.  [CHAP. 

But  the  appearance  of  the  defendant  at  the  taking  of  a  deposition 
is  not  a  waiver.  The  court  acquires  no  jurisdiction  over  the  person 
until  the  party  appears  in  court  where  there  has  been  no  service.3 

The  giving  of  special  bail  in  an  attachment  proceeding  for  the  pur- 
pose of  releasing  the  property  attached  is  not  such  an  appearance  as 
will  waive  defective  process. b 

233.  Can  be  no  "waiver  on  the  part  of  an  infant. — There 
can  be  no  waiver  on  the  part  of  an  infant  either  by  his  appearance  in 
person  or  by  attorney.     He  can  not  appear  except  by  a  guardian  ad 
litem,  or  his  general  guardian,  and  such  guardian  can  not  waive  defects 
in  the  process  or  its  service.0     The  same  rule  applies  to  persons  of 
unsound  mind  under  guardianship. 

• 

234.  Appearance    by    agreement    before    justice    of  the 

peace. — It  is  expressly  provided  by  statute  that  in  actions  before 
justices  of  the  peace  appearance  may  be  by  agreement.*1 

In  order,  however,  to  make  such  agreement  binding,  the  parties 
must  actually  appear  before  the  justice  and  state  the  agreement  that 
should  be  entered  on  the  record. 

The  action  in  such  case  is  deemed  commenced  from  the  time  of 
making  the  entry,  and  no  summons  is  necessary.6 

235.  Party  may  expressly  waive  service  of  process. — A 
party  may  expressly  waive  the  service  of  the  summons  after  it  comes 
to  the  hands  of  the  sheriff.     Such  waiver  is  equivalent  to  personal 
service,  and  the  sheriff  may  properly  return  the  summons  as  served  by 
reading.     But  the  party  must  understand  at  the  time  the  nature  and 
object  of  the  writ/    By  the  terms  of  the  statute  an  acknowledgment 
on  the  back  of  the  summons  is  a  sufficient  service.8 

236.  On  voluntary  appearance  may  demand  continuance, 
•when. — An  appearance  in  open  court,  while  it  waives  the  service  of 
process,  does  not  place  the  defendant  in  the  same  position  as  if  served 
at  the  proper  time.     He  may,  where  he  appears  on  the  day  the  com- 

(a)  Scott  v.  Hull,  14  Ind.  136.  baugh,  58  Ind.  285;   Doe  v.  Anderson, 

(b)  Root   v.    Monroe,  5    Blkf.   594;     5  Ind.  33. 

Carson  v.  The  Steamboat  Talnm,  3  Ind.  (d)   R.  S.  1881,  §  1450. 

194.  (e)  Iglehart's  Treatise,  30. 

(c)  Abdil    v.    Abdil,   26    Ind.   287;  (f)  Cast  eel  r.  Hiday,  13   Ind.  5oG: 
Hough  v.  Canby,  8  Blkf.  301 ;   llobbins  Clegg  v.  Patterson,  32  Ind.  135. 

v.  Robbins,  2  Ind.  74  ;  Martin  v.  Starr,         (g)  R.  S.  1881,  §  315. 
7  Ind.  224;    De  La  Hunt   v.  Holder- 


IX.]  ACTIONS,  HOW   COMMENCED.  161 

plaint  is  filed  in  open  court,  demand  a  continuance  until  the  next  term 
without  being  compelled  to  show  any  reason  therefor. h 

SERVICE   BY   COPY. 

237.  How  made. — The  service  by  copy  is  made  by  leaving  a  copy 
of  the  summons  at  the  last  or  usual  place  of  residence  of  the  defend- 
ant.'    And  where  two  or  more  defendants  reside  at  the  same  place,  : 
copy  should  'be  left  for  each  defendant.-1 

238.  Meaning  of  term  "  last  or  usual  place  of  residence." 
— What  is  meant  by  the  term  used  in  the  statute,  "  last  or  usual  place 
of  residence,"  is  not  clear.     The  supreme  court  has,  however,  defined  the 
meaning  of  the  statute :   "  The  usual  or  last  place  of  residence  means  the 
residence  into  which  the  person  still  a  resident  of  this  state  has  moved 
in  this  state  last  before  the  service  of  process."     This  is  equivalent  to 
saying  that  the  copy  must  be  left  at  the  actual  residence  of  the  defend- 
ant in  this  state,  and  this  has  since  been  held  to  be  the  meaning  of  the 
statute. k 

PROOF   OF   SERVICE. 

239.  The  statute. — The  statute  provides  the  manner  of  proving 
the  service  of  process.     "The.  proof  of  the  service  of  any  process  is- 
sued by  the  court  or  of  any  notice  required  to  be  served  upon  any  party 
shall  be  as  follows : 

"First.  If  served  by  the  sheriff,  his  certificate  thereof. 

"Second.  By  any  other  person,  his  affidavit  thereof.1 

"Third.  In  case  of  publication,  a  printed  copy  with  the  affidavit  of 
the  printer,  his  foreman  or  clerk,  or  of  any  competent  witness. 

"Fourth.  The  written  admission  of  the  defendant. 

"  The  affidavit  or  admission  must  state  the  time  and  place  of  ser- 
vice." m 

240.  When  service  is  made  by  private  individual. — It  has 
been  held,  however,  that  the  sheriff  or  his  deputy  may  authorize  a 
private  citizen  to  serve  a  summons  in  a  particular  case,  and  that  the 

(h)  Albertson  u.'Williams,  23  Ind.        (j)  Hutchins  v.  Latimer,  5  Ind.  67. 
612.  (k)  Sturgis    v.   Fay,   16    Ind.   429; 

(i)  R.  S.  1881, 1  315;  Kelly  v.  Mason,     Pigg  v.  Pigg.  43  Ind.  117. 
4  Ind.  618;  Hughes  v.  Osborn,  42  Ind.         (1)  Kyle  v.  Kyle,  55  Ind.  387. 
450;  Campbell  v.  Swasey,  12  Ind.  70;         (m)   R.  S.  1881,  §  481. 
Bryant  v.  The  State,  5  Ind.  245;  Pen- 
dleton  r.  Vanausdal,  2  Ind.  54. 
11 


162  ACTIONS,  HOW   COMMENCED.  [CHAP. 

affidavit  of  the  sheriff  that  such  authority  was  given,  and  the  affidavit 
of  the  party  making  the  service  that  the  summons  was  served  by  him, 
was  sufficient  proof  of  service." 

241.  Proof  of  service  when  made  on  party  out  of  state.— 
Where  the  party  has  been  served  out  of  the  state  by  a  private  indi- 
vidual, proof  of  service  may  be  made  by  his  affidavit.     But  such  ser- 
vice can  only  be  made  when  the  defendant  is  a  non-resident,  and  the 
affidavit  must  state  the  time,  place,  and  mode  of  giving  the  notice,  and 
set  forth  that  the  person  thus  served  is  the  identical  person  named  in 
the  action  or  proceeding.     But  where  the  party  making  the  service  is 
unable  to  make  the  affidavit  as  to  the  identity  of  the  defendant,  this 
may  be  shown  by  the  affidavit  of  the  plaintiff  or  any  other  person.0 

242.  By  -written  acknowledgment  of  defendant  on  back 
of  summons. — Thfe  service  of  the  summons  may  be  proved  by  the 
written  acknowledgment  of  the  defendant  on  the  back  of  the  sum- 
mons,1' but  in  such  case  the  acknowledgment  must  be  shown  to  have 
been  signed  by  the  defendant. 

243.  Officer's  return  must  be  attached  to  or  indorsed  on 
back  of  summons. — Where  the  proof  of  service  consists  of  the 
officer's  return,  such  return    must  be  indorsed  on  the   summons  or 
attached  thereto — must  show  the  time  and  manner  of  service,  and  be 
signed  by  the  proper  officer. 

244.  Return  of  officer,  when  conclusive. — The  return,  when 
thus  made  by  the  officer,  can  not  be.  questioned  by  the  parties  to  the 
action,  except  it  appear  to  have  been  fraudulently  made.(l)     As  to 
them  it  is  conclusive.*1 

While  the  rule  that  the  return  of  the  officer  is  conclusive  against  the 
parties,  and  can  not  be  collaterally  attacked  is  well  established,  there 
are  some  authorities  that  are  seemingly  the  other  way/ 

In  the  ease  of  Butler  v.  The  State,  the  court  say  :  "  In  argument  it 
is  said  that  this  return  is  conclusive  that  the  note  was  given  by  the  re- 
in) The   N.  A.   &  S.   K.   R.  Co.  v.    lespie,  48  Ind.  397;  Hamilton  v.  Mat- 
Grooms,  9  Ind.  243;  Patterson  v.  The     lock,  5  Blkf.  421;   Lines  v.  The  State,  6 
State,  10   Ind.  290;    Sbattuck  v.  The     Blkf.  464. 

State,  11  Ind.  473;  Proclor  v.  Walker,  (1)  Post,  Vol.  3,  p.  377;  see  also 
12  Ind.  660.  Neitert  v.  Trentman,  104  Ind.  390. 

(o)  E.  S.  1881,  §  319;  Cole  v.  Allen,  (r)  Butler  v.  The  State,  20  Ind.  169; 
M  Ind.  122.  Gregg  v.  Strange,  3  Ind.  366;  Butts  v. 

(p)   II.  S.  1881,  §  315.  Francis,  4  Con.  424;  Watson  v.  Wat- 

(q)  Smith  v.  Noe,  30  Ind.  117 ;  Row-  .son,  6  Conn.  334. 
t-11  v.  Kline,  44  Ind.  290;  Splahn  v.  Gil- 


IX.]  ACTIONS,  HOW   COMMENCED.  163 

lator  to  satisfy  the  execution.  We  do  not  so  understand  the  law. 
A  return  to  au  execution  is  always  conclusive  against  the  officer  who 
makes  it ;  but,  as  a  general  rule,  it  is,  as  to  other  cases,  mere  prima 
facie  evidence  of  the  facts  which  it  recites."8 

The  rule  is  not  correctly  stated  by  the  court.  The  return  is  conclu- 
sive against  the  officer  and  parties  to  the  action  in  which  the  return 
was  made  and  their  privies. 

In  the  officer's  favor,  and  as  against  third  parties,  the  return  is  only 
prima  facie  evidence,  and  may  therefore  be  collaterally  attacked  and 
controlled  by  other  evidence. 

The  rule  is  fully  and  correctly  stated  in  the  case  of  Splahn  i>.  Gilles- 
pie,  48  Ind.  397.  The  court  say:  "We  think  the  following  proposi- 
tions of  law  are  deducible  from  the  authorities  which  we  have  exam- 
ined in  the  investigation  of  the  subject  in  hand,  and  which  are  here- 
after cited  : 

"  1.  That  a  return  is  conclusive  against  the  officer  who  makes  it, 
and  is  prima  facie  evidence  in  his  favor. 

"  2.  That  a  return  upon  a  summons  is  conclusive  between  the  par- 
ties to  the  action. 

"3.  It  is  a  well-settled  principle  of  the  English  law,  that  a  sheriff's  re- 
turn on  an  execution,  or  order  of  sale,  is  not  traversable,  and  the  court 
will  not  try,  on  affidavits,  whether  the  return  by  the  sheriff  is  false, 
even  though  a  strong  case  is  made  out  showing  fraud  and  collusion ; 
but  the  party  must  resort  to  his  remedy  by  an  action  against  the 
sheriff  for  a  false  return.  In  Connecticut,  the  return  of  a  sheriff  on 
mesne  process  is  held  to  be  only  prima  facie  evidence,  but  even  in  that 
state  he  can  not  falsify  it  by  his  own  evidence.  In  most,  and  proba-. 
bly  all,  of  the  other  states  of  the  United  States,  the  rule  is  established 
that,  as  between  privies  to  the  suit  in  which  the  return  is  made,  and 
privies  and  the  officer,  except  when  the  latter  is  charged  in  a  direct 
proceeding  against  him  for  a  false  return,  the  sheriff's  return  is  con- 
clusive and  can  not  be  impeached.  A  party  or  privy  may  not  aver  the 
falsity  of  a  return  made  by  a  proper  officer  without  a  direct  proceed- 
ing against  the  officer,  even  in  chancery. 

"  4.  That,  between  third  parties,  the  return  of  an  officer  is  prima  facie 
evidence  only  of  the  matters  stated  in  the  return. 

"  5.  The  return  of  an  officer  on  mesne  or  final  process  can  be  evidence 
of  the  facts  stated  therein  only  when  the  facts  recited  are  official  acts 
done  in  the  ordinary  and  usual  course  of  proceedings.  Matters  of 

(s)  Citing  Gregg  v.  Strange,  3  Ind.  366;  1  Phi.  Ev.,  4  Am.  ed.,  p.  521,  note, 
146;  2  Id.,  p.  363,  note,  383. 


164 


ACTIONS,  HOW   COMMENCED. 


fCHAP. 


opinion  or  excuse  for  failure  to  perform  a  duty  can  not  be  made  evi- 
dence by  stating  them  in  the  return.* 

245.  Proof   of   publication. — Notice    by  publication    may    be 
proved  by  the  affidavit  of  the  printer,  or  any  person  in  his  employ  as 
a  clerk  or  printer,  of  competent  age,  annexed  to  a  copy  of  the  notice 
taken  from  the  paper  in  which  it  was  published.     The  affidavit  must 
specify  the  county,  the  time  when  and  the  paper  in  which  the  notice 
was  published." 

246.  Proof  of^  notice  given  out  of  court. — Where  notice  is 
given  out  of  court  and  served  by  the  sheriff,  although  it  belongs  to 
none  of  the  different  classes  of  process  connected  with  the  trial  of  a 
cause  of  action,  the  sheriff's  return  is  competent  evidence  of  the  service 
of  the  notice.7   But  such  service  may  be  made  by  any  private  individual 
and  proved  by  his  affidavit  or  oral  evidence,  and  while  the  return  of 
the  officer  is  competent  evidence,  it  should  not  be  held  as  conclusive. 

247.  What   return   should    show. — The  return   should  state 
the  time  when  the  summons  was  received,  as  the  time  the  summons 


(t)  Citing  Lindley  v.  Kelley,  42  Ind. 
294,  and  the  authorities  there  cited ; 
Gwynne  on  Sheriffs,  473-477 ;  Crocker 
Sheriffs,  §§  45,  46,  47 ;  Watson  Sheriffs 
(Phila.  ed.  Law  Lib.),  52,  53;  Allen 
Sheriffs,  57;  Small  v.  Hodgen,  1  Litt. 
16;  Trigg  v.  Lewis,  Ex'r,  3  Litt.  129; 
Bibb  v.  Monroe,  5  Litt.  199;  Taylor  v. 
Lewis,  2  J.  J.  Marshall,  400;  Hill  v. 
Kling,  4  Ohio,  135;  Stewart  v.  Hues- 
ton,  25  Ark.  311;  Frasier  v.  "William- 
son, 12  Minn.  288 ;  Hutchins  v.  County 
Comm'rs,  etc.,  16  Minn.  13;  Huntress 
v.  Tiney,  39  Me.  237;  Hotchkiss  v. 
Hunt,  56  Me.  252;  Slayton  v.  Chester, 
4  Mass.  478;  Bull  v.  Burnell,  9  Mass. 
93;  The  Inhabitants,  etc.,  v.  The  In- 
habitants, etc.,  11  Mass.  379 ;  Angell  v. 
Bowler,  3  K.  I.  77 ;  Stoors  v.  Kelley,  2 
Paige,  418;  Gardner  v.  Buckbee,  3 
Cow.  120;  Allen  v.  Martin,  10  Wend. 
207;  Jackson  v.  Wood,  3  Wend.  27; 
Townsend  v.  Olin,  5  Wend.  207 ;  Gard- 
ner v.  Hosmer,  6  Mass.  325;  The  Col. 
Ins.  Co.  v.  Force,  8  How.  Prac.  353; 


Ehleringer  v.  Moriarty,  10  Iowa,  78; 
Lawrence  v.  Pond,  17  Mass.  433; 
Whitaker  v.  Sumner,  7  Pick.  551 ; 
Miles  v.  Knott,  12  Gill.  &  J.  442; 
Bryan  v.  Brown.  2  Murphy,  343 ; 
Hamilton  v,  Adams,  2  Murphy,  161; 
Dunn  v.  Merriwether,  1  A.  K.  Mar. 
158 ;  Martin  v.  McCargo,  5  Litt.  293 ; 
Haynes  v.  Small,  22  Me.  14;  Wilson  v. 
Loring,  7  Mass.  392;  Barret  v.  Cope-- 
land, 18  Vt.  67;  Paxton  v.  Stekel,  2 
Barr.  (Pa.)  93;  Doty  v.  Turner,  8 
Johns.  20;  Sheldon  v.  Payne,  3  Seld. 
453;  In  re  Smith,  4  Nevada,  254; 
Kingsbury  v.  Buchanan,  11  Iowa,  387; 
Barker  v.  Moffit,  11  Iowa,  527;  Me. 
Clure  v.  Engelhardt,  17  111.  47; 
Wheaton  v.  Sexton,  4  Wheat.  503. 

(u)  R.  S.  1881,  §  473,  474;  Willis  v. 
Ridgway,  9  Ind.  367;  Andrews  v.  The 
O.  &  M.  K.  R.  Co.,  14  Ind.  169. 

(v)  White  v.  Webster,  58  Ind.  233; 
Taylor  v.  Taylor,  64  Ind.  356;  R.  S. 
1881,  §  481. 


IX.]  ACTIONS,  HOW   COMMENCED.  165 

came  to  hand  is  the  commencement  of  the  action. w  It  should  also 
state  the  time  and  manner  of  service.  But  where  the  return  is  general 
in  its  terms  as  "  served  upon  the  defendant,"  the  court  will  presume 
the  service  to  have  been  by  reading.1  And  it  has  also  been  held  that 
a  return  of  "  served  by  reading,"  without  stating  upon  whom  it  was 
served,  is  sufficient. y 

But  in  case  of  a  return  that  must  be  aided  by  the  presumption  of 
the  court  to  make  it  valid,  so  far  as  the  manner  of  the  service  is  con- 
cerned, it  can  not  be  conclusive.  It  would,  under  the  authorities,  be 
conclusive  that  the  summons  had  been  served,  but  where  the  manner 
of  service  is  not  stated  in  the  return,  it  may  be  shown  by  the  party 
against  whom  it  is  offered  as  evidence  how  the  service  was  made. 

DEFECTIVE    PROCESS. 

248.  How  to   proceed   in   case   of  defective   process   or 
service. — If  the  summons  is  defective  the  defect  can  be  reached  by  a 
motion  to  quash  the  writ,  and  to  make  such  motion  a  special  appearance 
must  be  entered.2 

If  there  is  a  defect  in  the  return  of  the  officer  it  should  be  reached 
by  a  motion  to  set  aside  the  return,  and  should  state  clearly  the  ob- 
jections thereto.*  If  the  defect  appears  on  the  face  of  the  summons  or 
return,  nothing  more  than  the  motion  is  necessary,  but  where  the  defect 
complained  of  does  not  so  appear,  the  motion  must  be  supported  by 
affidavit. 

Where  the  summons  is  defective  in  stating  the  Christian  name  of  the 
plaintiff  erroneously,  but  the  name  was  properly  stated  in  the  com- 
plaint, it  was  held  that  the  summons  might  be  amended  to  correspond 
with  the  complaint.b 

And  the  officer's  return  may  be  so  amended  as  to  state  the  facts.0 

A  motion  to  set  aside  or  quash  the  summons  or  notice  must  state 
specifically  the  grounds  of  objection. d 

249.  Agreed  case,  when  and  how  commenced. — The  statute 

(w)  Ante,  I  204.  Combs,  13  Ind.  490;  Hutchins  v.  Lati- 

(x)  Colerick  v.  Hooper,  3  Ind.  316.  mer,  5  Ind.  67;  The  J.,  M.  &  I.  R.  R. 

(y)  Holsinger   v.  Dunham,  11    Ind.  Co.  v.  Dunlap,  29  Ind.  426. 

346;  Chandler  v.  Miller,  11  Ind.  382.  (b)  Hannis  v.  Battorff,  17  Ind.  348; 

(z)  Hust  v.  Conn,  12  Ind.  257 ;  The  The  State  v.  Hood,  6  Blkf.  260. 

C.,  H.  &  D.  R.  R.  Co.  v.  Street,  50  Ind.  (c)  Jackson  v.  The  O.  &  M.  R.  11. 

225;    Bick.    Civ.  Prac.  61 ;    Iglehart's  Co.,  15  Ind.  192;  De  Armond  v.  Adams, 

Prac.,  p.  138,  §  13.  25  Ind.  455.     Post,  sec.  723. 

(a)  Campbell  v.  Swasey,  12  Ind.  70;  (d)  Hadley  v.  Gutridge,58  Ind.  302 
The  New  Albany,  etc.,  R.  R.  Co.  v. 


166  ACTIONS,  .HOW   COMMENCED.  [CHAP. 

provides  for  the  submission  of  cases  upon  an  agreed  statement  of  facts. 
When  this  is  done  in  addition  to  the  agreed  statement  of  facts,  it  must 
appear  by  affidavit  that  the  controversy  is  real  and  the  proceedings  in 
good  faith  to  determine  the  rights  of  the  parties.6  No  summons  is 
necessary  under  this  section  of  the  code,  and  the  action  is-  commenced 
from  the  time  of  filing  the  statement  of  facts  and  the  affidavit. 

(e)  R.   S.   1881,   §  553 ;    Godfrey   v.     Dodge,  57  Ind.  584 ;  Gregory  v.  Pur- 
Wilson,   70  Ind.   50 ;    Manchester  v.    due,  29'  Ind.  66. 


X.] 


LIMITATIONS   OF  ACTIONS. 


1G7 


CHAPTER  X. 


LIMITATIONS  OF  ACTIONS. 


SECTION. 

250.  The  statute. 

251.  Special  statutes. 

252.  Statute  affects  the  remedy  only, 

and  is  constitutional. 

253.  A  statute  which   takes   away  an 

existing  cause  of  action  or  de- 
fense is  unconstitutional. 

254.  "When  a  statute  will  be  construed 

to  be  retroactive. 


SECTION. 

266.  Effect   of    statute    where    action 

may" be  in  tort  or  upon  contract. 

267.  Actions  on  open  and  current  ac- 

counts. 

268.  Meaning  of  the  term  "open  and 

current  account." 

EXCEPTIONS. 

269.  Statutory  exceptions. 


WHEN    STATUTE    COMMENCES   TO   RUN. 

255.  From   time   cause  of   action    ac-* 

crues. 

WHEN    CAUSE   OF   ACTION   ACCRUES. 

256.  In    actions   on   promissory  notes 

payable  in  bank. 

257.  In  actions  against  agents,  factors, 

and  attorneys. 

258.  Actions   against   trustees   and  to 

enforce  subsisting  trusts. 
*259.  "Where  an  officer  or  other  person 
is  bound  by  statute  to  pay  or  ac- 
count at  a  fixed  time. 

WHEN   A   DEMAND   IS    NECESSARY. 

260.  Eules  established  by  decided  cases. 

261.  Notes   payable  when    maker  '-is 

able." 

262.  Actions  to  recover  personal  prop- 

erty. 

263.  In    an    action    by    one    partner 

against  another  for  an  account- 
ing. 

264.  Demand  excused  by  some  act  of 

the  defendant. 

265.  When    cause   of   action    accrues 

where  a  tender  is  necessary. 


SET-OFF. 

270.  As  a  defense,  not  barred. 

LEGAL    DISABILITIES. 

271.  Statute    does    not    apply   where 

party   is    laboring   under   legal 
disabilities. 

272.  Meaning  of  the  term  "under  le- 

gal disabilities." 

273.  Where  more  than  one  legal  disa- 

bility exists. 

274.  Effect  of  disability  in  case  of  ap- 

peals. 

275.  Non-resident  of  the  state,  or  ab- 

sent on  public  business. 

276.  Section  297  only  applies  to  causes 

of  action  that  accrue  out  of  the 
state. 

277.  What   is   meant    by   the  phrase 

"  absent  on  public  business." 

278.  Limitations  of  another  state  can 

not  be  set  up  in   an  action  re- 
specting real  estate. 

279.  Case  of  Smith  v.  Wiley,  21  Ind. 

224,  criticised. 

280.  Effect  of  death  of  one  of  the  par- 

ties before  the  statute  has  run 
its  full  time. 


168 


LIMITATIONS   OF  ACTIONS. 


[CHAP. 


281.  Where  plaintiff  has  once  brought 

his  action  and  failed;  time  ex- 
tended in  certain  cases. 

282.  Where  the  action  abates,  or  is  de- 

feated by  the  death  of  one  of  the 
parties. 

283.  Where  the  judgment  is  arrested 

or  reversed  on  appeal. 

CONCEALMENT. 

284.  Statute  does  not   run  where  the 

defendant  conceals  the  cause  of 
action. 

285.  What   amounts   to   concealment, 

within  the  meaning  of  the  stat- 
ute, 

NEW    PROMISE ACKNOWLEDGMENT. 

286.  Cause  taken  out  of  the  statute  by 

acknowledgment  or  promise  in 
writing. 

287.  This  exception  applies  only  to  ac- 

tions on  contract. 

288.  What  is  a  sufficient  new  promise. 

289.  Effect     of     acknowledgment     or 

promise  by  one  joint  contractor. 

290.  A  joint  contractor,  once  released, 

can  not  be  made  liable  to  his  co- 
contractor,  who  has  been  com- 
pelled to  pay  the  debt. 

PART    PAYMENT. 

291.  Effect  of  part  payment. 

292.  What  is  part  payment,  within  the 

meaning  of  the  statute. 

293.  By  and  to  whom  payment  must 

be  made. 

294.  Will  a  new  promise,  acknowledg- 

ment, or  part  payment,  by  an 
executor  or  administrator, avoid 
the  operation  of  the  statute  ?  . 

PARTNERS. 

295.  A  promise  or  part   payment   by 

one  partner  will  bind  the  firm, 
if  made  before  dissolution,  but 
not  if  made  afterwards. 


CITIZENS    OF    BELLIGERENT    POWKI'.S. 

296.  The   statute  of    limitations   does 

not  run  between  citizens  of  dif- 
ferent belligerent  powers  during 
the  existence  of  war. 

JOINT    CONTRACTS. 

297.  Practice,    where    one   of   several 

persons  entitled  to  bring  a  joint 
action,  is  barred  by  the  statute. 

MECHANICS'  LIENS. 

298.  Limitations  in  case  of  mechanic's 

lien. 

299.  Time  ceases  to  run  from  the  time 

notice  is  left  for  record. 

300.  Notice  must  show,  if  a  credit  has 

been  given,  or  the  time  in  which 
to  sue  will  be  limited  to  one 
year  from  the  completion  of  the 
work. 

301.  Limitation  does  not  apply  to  no- 

tice required  by  section  5295  to 
be  given  by  sub-contractors. 

302.  When  statute  commences  to  run 

in  such  cases. 

HEIRS,    DEVISEES,    AND    DISTRIBUTEES. 

303.  Limitation     of    actions     against 

heirs,  devisees,  and  distributees, 

for  the  debts  of  the  decedent. 

• 

THE    UNITED    STATES    AND    STATE    OF 
INDIANA. 

304.  The   United   States   not    barred, 

and  the  State  of  Indiana  not 
barred  by  the  statute,  except  as 
to  sureties. 

JUDGMENTS    AND    DECREES. 

305.  Limitations  of  judgm'ents  and  de- 

crees. 

HOW    QUESTION    RAISED. 

306.  How  the  question  of  the  statute 

of  limitations  may  be  raised. 

307.  Statute  must  be  specially  pleaded. 


X.]  LIMITATIONS  OF  ACTIONS.  169 

308.  Statute  need  not  be  pleaded   in  specially  pleaded  by  way  of  re- 

actions to  recover  real  estate.  ply. 

309.  Exceptions  to  the  statute  must  be     310.  May  plead  exceptions  in  supreme 

court. 

250.  The  statute. — "The  following  actions  shall  be  commenced 
within  six  years  after  the  cause  of  action  has  accrued,  and  not  after- 
wards : 

"First.  On  accounts  and  contracts  not  in  writing.3 

"Second.  For  use,  rents,  and  profits  of  real  property.b 

"Third.  For  injuries  to  property,  damages  for  any  detention  thereof, 
and  for  recovering  possession  of  personal  property.0 

"Fourth.  For  relief  against  frauds."  d 

"The  following  actions  shall  be  commenced  within  the  periods  herein 
prescribed,  after  the  cause  of  action  has  accrued,  and  not  afterwards : 

"First.  For  injuries  to  person  or  character,  and  for  a  forfeiture  or 
penalty  given  by  statute,  within  two  years.6 

"Second.  All  actions  against  a  sheriff  or  other  public  officer,  or 
against  such  officer  and  his  sureties  on  a  public  bond  growing  out  of  a 
liability  incurred  by  doing  an  act  in  an  official  capacity,  or  by  the 
omission  of  an  official  duty,  within  five  years ;  but  an  action  may  be 
brought  against  the  officer  or  his  legal  representatives  for  money  col- 
lected in  an  official  capacity,  and  not  paid  over,  at  any  time  within  six 
years. f 

"Third.  For  the  recovery  of  real  property  sold  on  execution  brought 
by  the  execution  debtor,  his  heirs,  or  any  person  claiming  under  him 
by  title  acquired  after  the  date  of  the  judgment,  within  ten  years  after 
the  sale.g 

"Fourth.  For  the  recovery  of  real  property  sold  by  executors,  admin- 
istrators, guardians,  or  commissioners  of  a  court  upon  a  judgment 
specially  directing  the  sale  of  property  sought  to  be  recovered,  brought 
by  a  party  to  the  judgment,  his  heirs,  or  any  person  claiming  a  title 

(a)  Carlisle  v.  Morris,   8  Ind.  421 ;  (e)   Pratt  v.  The  State,  7  Ind.  625. 
Root  v.  Moriarty,  39  Ind.  85?  Staley  v.  (f  )  The  limitation  under  the  code 
Jameson,  46  Ind.  159;  Sexton  v.  Sex-  of  1852  was  three  years.     R.  S.  1881,  \ 
ton,  35  Ind.  88 ;  Sanders  v.  Sanders,  48  293  ;  Pickett  v.  The  State,  24  Ind-.  366 , 
Ind.  84.  The  Board  of  Commissioners,   etc.,  v. 

(b)  K.  S.  1881,  §  292.  Saunders,  17  Ind.  437. 

(e)  Lucas  v.  Marine,  40  Ind.  289;  *    (g)  Gray   r.   Stiver,    24   Ind.   174; 

'.u;  Jeffersonville,  etc.,   R.  R.  Co.  v.  Wood  v.  San  ford.  23  Ind.  96;  Hatfield 

Gabbert,  25  Ind.  431.  v .  Jackson,  50  Ind.  507 ;  Franze  v.  Har- 

(d)  Raymond  v.  Simonson,  4  Blkf.  row,  13  Ind.  507 ;  May  v.  Fletcher,  40 

77;    Pilcher  v.   Flinn,   30   Ind.   202;  Ind.  575. 
Musselman  v.  Kent,  33  Ind.  452. 


170  LIMITATIONS   OF  ACTIONS.  [CHAP. 

under  a  party  acquired  after  the  date  of  the  judgment,  within  five  years 
after  the  sale  is  confirmed.11 

"Fifth.  Upon  promissory  notes,  bills  of  exchange,  and  other  written 
contracts  for  the  payment  of  money  hereafter  executed,  within  ten 
years :  Provided,  that  all  such  contracts  as  have  been  heretofore  executed 
may  be  enforced  under  this  act  within  such  time  only  as  they  have  to 
run  before  being  barred  under  the  existing  law  limiting  the  commence- 
ment of  actions,  and  not  afterwards. 

"Sixth.  Upon  contracts  in  writing  other  than  those  for  the  payment 
of  money  on  judgments  of  courts  of  record,  and  for  the  recovery  of 
the  possession  of  real  estate,  within  twenty  years."  ' 

"Sec.  294.  All  actions  not  limited  by  any  other  statute  shall  be 
brought  within  fifteen  years.J  In  special  cases  where  a  different  limi- 
tation is  prescribed  by  statute,  the  provisions  of  this  act  shall  not 
apply. 

"Sec.  295.  In  an  action  brought  to  recover  a  balance  due  upon  a 
mutual,  open,  and  current  account  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  date  of  the  last  item 
proved  in  the  account  on  either  side."  k 

251.  Special  statutes. — This  may  be  termed  the  statute  of  lim- 
itations proper,  but  it  provides,  as  will  be  seen*,  that,  "  in  special  cases, 
where  a  different  limitation  is  fixed  by  statute,  the  provisions  of  this 
statute  shall  not  apply."  There  are  other  statutes  fixing  a  different 
limitation,  as  follows : 

First.  Actions  to  enforce  mechanic's  liens  within  one  year  from  the 
completion  of  the  work,  or  furnishing  the  material,  or  if  a  credit  be 
given,  within  one  year  from  the  expiration  of  the  credit.1 

Second.  Actions  against  heirs,  devisees  and  distributees,  by  a  creditor 
whose  claim  remains  unpaid,  who,  six  months  prior  to  the  final  settle- 
ment of  the  estate,  was  insane,  an  infant,  or  out  of  the  state,  within 
one  year  after  the  disability  is  removed.1" 

Third.  Proceedings  to  review  judgments  for  any  error  of  law  ap- 
pearing in  the  proceedings  and  judgment,  within  one  year,  or  for  ma- 
terial new  matter  discovered  since  the  rendition  thereof,  within  three 

(h)  Vancleave  v.  Milliken,  13  Ind.  low,  52  Ind.  8;  Nutter  v.  Hawkins,  93 

105;  Vail  v.  Hatton,  14  Ind.  314.  Ind.  260. 

(i)  The  limitation  of  the  right  to  sua  (k)  K.  S.  1881,  §§  292,  293,  294,  295. 

on  this  class  of  contracts  was   twenty  The  general  statute  does  not  apply  to 

years,  under  the  code  of  1852.     R.  S.  transactions  between  husband  and  wife. 

1876,  I  211,  sub.  Fifth.  Barnett  v.  HHnhher-rer.  105  Ind.  410. 

(j)  Potter   v.  Smith,   36    Ind.   231.  (1)   11.  S.  1881,  ?  5297;  post.  \  298  et 

Actions  for  partition  are  governed  by  seq  ;   Lawton  v.  Case,  73  Ind.  60. 

this  general  clause.    Winslow  v.  Wins-  (m)  R.  S.  1881,  §  2442. 


X.]  LIMITATIONS   OF  ACTIONS.  171 

years,  or  for  both  causes,  within  one  year  after  the  rendition  of  the 
judgment." 

Fourth.  Actions  to  recover  for  the  death  of  one  caused  by  the 
wrongful  act  or  omission  of  another,  within  two  years.0 

Fifth.  Proceedings  to  be  relieved  from  judgment  taken  on  construc- 
tive notice,  within  five  years. p 

Sixth.  Proceedings  to  be  relieved  from  a  judgment  taken  through 
mistake,  inadvertence,  surprise,  or  excusable  neglect,  within  two  years 
from  the  rendition  of  the  judgment. q 

Seventh.  Actions  on  the  recognizance  against  special  bail,  within  two 
years/ 

Eighth.  Prosecutions  for  bastardy,  within  two  years  from  the  birth 
of  the  child.8 

Ninth.  Applications  for  new  trial  as  of  right,  in  actions  to  recover 
real  estate,  within  one  year.1 

Tenth.  Actions  to  contest  wills,  within  three  years  after  the  will  has 
been  offered  for  probate." 

Eleventh.  Actions  by  administrators  or  executors  to  set  aside  fraudu- 
lent conveyances,  within  five  years  after  the  death  of  the  testator  or 
intestate.7 

Twelfth.  Proceedings  to  set  aside  judgments  against  infants  in  set- 
tlement of  insolvent  estates,  three  years  after  arriving  at  full  age.w(l) 

252.  Statute  affects  the  remedy  only  and  is  constitutional. 
— The  statute  of  limitations  is  clear  enough  in  its  terms,  but  some  of  the 
most  intricate  questions  in  our  practice  have  grown  out  of  its  provis- 
ions, and  the  decisions  upon  its  construction  and  the  effect  that  should 
be  given  it  are  very  numerous.  The  most  serious  question  as  to  the 
statute  has  been  with  reference  to  its  constitutionality  when  applied  to 
contracts  entered  into  before  its  enactment.  Those  who  insisted  that 
the  statute  was  unconstitutional  did  so  upon  the  ground  that  the  lim- 
itation fixed  by  its  terms  constituted  a  part  of  the  contract.  If  the 
premise  were  correct,  the  conclusion  would  be  inevitable.  If  the  stat- 
ute in  force  at  the  time  the  contract  was  entered  into  formed  a  part  of 

(n)  R.  S.  1881,  §  616;  Brown  v.  Lu-  (s)  R.  S.  1881,  §  995. 

cas,  18  Ind.  286;   Nealis  v.  Dicks,  72  (t)  R.  S.  1881,  §  1064. 

Ind.  374;  Rosa  v.  Prather,  103  Ind.  191.  (u)  R.  S.  1881,  §  2596;  Potts  v.  Fel- 

(o)  R.  S.  1881,  §  284;  Hanna  v.  The  ton,  70  Ind.  166;  Floyd  v.  Floyd,  90 

Jeffersonville,  etc.,  R.  R.  Co.,  32  Ind.  Ind.  130. 

113.  (v)  R.  S.  1881,§2334. 

(p)'  R.  S.  1881,  §  600.  (w)  R.  S.  1881,  §  2453. 

(q)  R.  S.  1881,  §  396;  Smith  v.  Noe,  (l)For  further  limitations  in  particular 

30  Ind.  117.  cases,  see  Vol.  3,  p.  382,  395. 

(r)  R.  8.1881,  §880. 


172  LIMITATIONS   OF  ACTIONS.  [CHAP. 

the  contract,  the  legislature  would  have  no  power  to  repeal  the  statute 
or  change  its  terms  so  as  to  affect  the  time  of  bringing  the  action. 
But  the  supreme  court  has  decided  that  the  statute  does  not  form  a 
part  of  the  contract,  but  affects  the  remedy  only,  and  may,  therefore, 
be  repealed  or  amended  by  the  legislature.1 

253.  A  statute  which  takes  away  an  existing  cause  of  ac- 
tion or  defense  is  unconstitutional. — But  while  it  is  thus  firmly 
settled  by  a  long  line  of  decisions  that  the  statute  of  limitations  affecte 
the  remedy  and  not  the  cause  of  action,  and  may,  therefore,  be  retro- 
active and  change  the  time  of  bringing  suit  on  contracts  in  force  at  the 
date  of  its  enactment,  it  is  equally  well  settled  that  the  legislature  can 
not,  by  a  statute  of  limitations,  take  away  either  a  cause  of  action  or 
a  defense  that  already  exists.  When  a  cause  of  action  is  already 
barred  by  the  statute  in  force,  thereby  furnishing  the  party  a  defense 
to  the  action,  the  legislature  can  not,  by  extending  the  time  in  which 
such  action  may  be  brought,  take  away  his  defense  nor  divest  a  title 
already  acquired  by  limitation.3" 

The  rule  is  clearly  stated  by  Mr.  Cooley  in  his  valuable  work  on 
Constitutional  Limitations : 

"  When  the  period  prescribed  by  statute  has  once  run  so  as  to  cut 
off  the  remedy  which  one  might  have  had  for  the  recovery  of  property 
in  the  possession  of  another,  the  title  to  the  property,  irrespective  of 
the  original  right,  is  regarded  in  the  law  as  vested  in  the  possessor,  who 
is  entitled  to  the  same  protection  in  respect  to  it  which  the  owner  is 
entitled  to  in  other  cases.  A  subsequent  repeal  of  the  limitation  law 
could  not  be  given  a  retroactive  effect  so  as  to  disturb  this  title.2 

"  It  is  vested  as  completely  and  perpetually,  and  is  as  safe  from  legis- 
lative interference  as  it  would  have  been  had  it  been  perfected  in  the 

(x)  Blackford  r.  Ex'rs  of  Johnso*n,  1  gell  on  Lira,  §  22;  Buttles  v.  Forbes. 

Blkf.   36;    Lewis   v.    Brackenridge,   1  18  Pick.  532;  Pritchard  v.  Spencer,  2 

Blkf.  220;   Winston  v.   McCormiek,  1  Ind.    48f> ;    McKinney    r.    Springer,  8 

Ind.  56;    Manchester   v.  Dodridge,    3  Blkf.  506;  Stipp  v.  Brown,  2  Ind.  647; 

Ind.  360;  The  State  r.  Swope,  7  Ind.  Winston    i\   McCormick,    1    Ind.   56; 

91;    Gimbel   v.   Smidth,    7   Ind.   G27;  Davis  r.  Minor.  28  Am.  Dec.  325;  s.  c., 

Pritchard  ».  Spencer,  2  Ind.  486;  Stipp  1  Howard.  183. 

v.  Brown,    2    Ind.  647;    Hendricks   v.  (z)  Citing    Brent    v.    Chapman,    5 

Comstock,    12    Ind.   238;    Demoss   v.  Cranch,    358;     Newsby's    Adm'rs    r. 

Newton,   31    Ind.   219;    McEntire   v.  Blakely,  3  H.&  M.  57;  Parish  v.  Eager, 

Brown,  28  Ind.  347;  Ludlow  v.  Van-  15  Wis.  532;    Baggs'   Appeal,  43  Pa. 

camp,  11  Am.  Dec.  529.  St.    512;    Leffingwell    v.  Warren,    2 

(y)  Cooley's  Const.  Lira.  365;  An-  Blkf.  599. 


X.] 


LIMITATIONS  OF  ACTIONS. 


173 


owner  by  grant  or  by  any  species  of  assurance. a "  The  rule  is  the  same 
as  to  the  party  in  whose  favor  the  cause  of  action  exists.  His  right 
can  not  be  taken  away.  Where  the  time  of  bringing  the  action  is 
changed,  a  reasonable  time  must  be  allowed  for  the  commencement  of 
causes  of  action  that  have  accrued.* 

Mr.  Cooley  thus  states  the  law  : 

"All  statutes  of  limitation  also  must  proceed  on  the  idea  that  the 
party  has  full  opportunity  afforded  him  to  try  his  rights  in  the  courts. 
A  statute  could  not  bar  the  existing  right  of  claimants  without  afford- 
ing this  opportunity.  If  it  should  attempt  to  do  so  it  would  be  not  a 
statute  of  limitations,  but  an  unlawful  attempt  to  extinguish  rights 
arbitrarily,  whatever  might  be  the  purport  of  its  provisions.  It  is  es- 
sential that  such  statutes  allow  a  reasonable  time  after  they  take  effect 
for  the  commencement  of  suits  upon  existing  causes  of  action." c 

But  what  is  a  reasonable  time  must  be  settled  by  the  legislature.*1 

Notwithstanding  the  rule  is  well  settled  by  authority,  that  the  legis- 
lature alone  can  determine  what  is  a  reasonable  time  in  which  actions 
shall  be  commenced,  the  courts  have  been  called  upon  frequently  to 
decide  whether,  in  a  given  case,  the  time  given  is  reasonable ;  and,  in 


(a)  Citing  Holden  v.  James.  11  Mass. 
396;  Wright  u.  Oakley,  5  Met.  400; 
Lewis  v.  Webb,  3  Me.  326 ;  Adkinson 
v.  Dunlap,  50  Me.  Ill;  David  r.  Minor, 
1  How.  (Miss.)  183;  Hicks  v.  Steigle- 
man,  49  Miss.  377  ;  Knox  r.  Cleveland, 
13  Wis.  245;  Sprecker  v.  Wakelee,  11 
Wis.   432;     Pleasants    v.    Rohrer,    17 
Wis.  577;  Moore  v.  Luce,  29   Pa.  St. 
260;    Morton   v.   Sharkey,    McCahon, 
113;  Briggs   v.   Hubbard,   19  Vt.  86; 
McKinney  v.   Springer,  8   Hlkf.  506; 
Stipp  v.  Brown,  2  Ind.  647;  Wires  v. 
Farr,  25  Vt.  41 ;  Woart  v.  M  in  nick,  3 
N.  H.  473;    Rockport  v.  Walden,  54 
N.  H.  167;  Thompson  v.  Caldwell,  3 
Lit.   137;    Couch    v.    McK.ee,    1    Eng. 
(Ark.)   495;    Girdner  v.   Stephens,    1 
Heisk.  280;  Yancy  r  Yancy,  5  Heisk. 
353;  Bradford  v.  Shires'  Ex'rs,  13  Ha. 
™T;  Lockhart  v.  Horn.  1  Woods.  628; 
Horhacb.  v.  Miller,  4  Neb.  31 ;  Pitman 
»•     Rump,   5   Greg.    17;    Thompson   '•. 
Reid,  41  Iowa,  48 ;  Reformed  Church 
v.  Schoolcraft.  65  N.  Y.  134. 

(b)  Thp  State  v.  Clarke..  7  Ind.  468; 


Pritchard  v.  Spencer,  2  Ind.  486;  The 
State  v.  Swope,  7  Ind.  91 ;  Leard  v. 
Leard,  30  Ind.  171 ;  Demoss  v.  New- 
ton,  31  Ind.  219 ;  The  State  v.  McNeal, 
24  Ind.  383. 

(c)  Cooler's  Const.  Lim.,  p.  366,  cit- 
ing Price  v.  Hopkins,  13   Mich.  318; 
Call  v.  Hagger,  8  Mass.  423;  Proprie- 
tors,  etc.,  v.  Laforce,  2   Greenl.   294; 
Society,  etc.,  v.  Wheeler,  2  Gall.  141 ; 
Blackford  v.  Peltier,  1  Blkf.  36;  Thorn- 
ton v.  Turner,  11  Minn.  339;  Osborn 
v.  James,    17   Wis.   573;    Morton    v. 
Sharkey,  McCahon  (Kan.),  113;  Berry 
v.  Ramsdell,  4  Met.  (Ky.)  296;  Lud- 
wig  v.  Stewart,  32  Mich.  27 ;  Hart  v. 
Hostwick,    14    Fla.   162;    Peerless    r. 
Watcrtown,  6  Biss.  79;   O'Bannon  r. 
Louisville,  etc.,  R.  R.  Co.,  8  Bush,  348; 
Adamson  v.  Davis,  47  Mo.  268. 

(d)  Demoss  v.  Newton,  31  Ind  219: 
Call  r.  Hairger,  8  Mass.  423;  Stearns 
v.  Gittings,  23  111.  387;  Price  v.  Hop- 
kins. 13  Mich.  318;  Smith  v.  Morrison, 
22    Pick.  430;    Cooley's   Const.   Lim., 
p.  366. 


174  LIMITATIONS   OF  ACTIONS.  [CHAP. 

some  cases,  the  right  to  determine  the  question  has  been  exercised  by 
the  courts.0 

The  case  of  The  State  v.  Swope  was  criticised  in  the  case  of  DeMoss 
v.  Newton,  31  Ind.  219,  on  account  of  the  language  used,  that  the 
court  would  allow  a  party  a  reasonable  time  after  the  statute  took 
effect  in  which  to  bring  his  action ;  but  the  latter  case  was  not  one 
where  the  cause  of  action  grew  out  of  contract.  The  cause  of  action 
sued  on  was  given  by  law  and  not  by  contract,  and  an  attempt  was 
made  to  distinguish  between  causes  of  action  arising  out  of  contract 
and  those  given  by  law,  but  the  authorities  cited  make  no  such  dis- 
tinction, and  the  rule  that  the  courts  can  not  determine  the  reasona- 
bleness of  the  time  given  in  either  case,  though  supported  by  the 
weight  of  authority,  has  no  good  reason  to  support  it.  If  it  would  be 
unconstitutional  to  deprive  a  party  of  his  right  of  action  absolutely,  it 
would  be  equally  so  to  limit  the  time  so  that  the  result  would  be  the 
same;  and  it  should  be  equally  within  the  jurisdiction  of  the  courts 
to  determine  the  question  of  the  constitutionality  of  the  statute  in  the 
one  case  as  in  the  other. 

254.  "When  a  statute  will  be  construed  to  be  retroactive. — 
As  I  have  already  shown,  statutes  of  limitation  may  be  retroactive, 
but  they  are  not  so  in  all  cases.  Unless  the  statute  is  madfe  retro- 
active by  its  express  terms,  or  contains  a  proviso  saving  rights  of 
action  accrued  prior  to  its  passage,  it  has  effect  from  its  enactment,  and 
is  not  retroactive/  In  the  case  of  McEntire  v.  Brown,  it  was  held 
that  the  statute  of  1852  was  retroactive  notwithstanding  section 
1289  of  the  code,  which  provides,  in  express  terms,  that  "  no  part  of 
this  act  shall  be  retroactive  unless  expressly  so  declared."  The  court 
did  not  claim  that  the  statute  was  made  retroactive  by  its  express 
terms,  but  that  section  1289  was  open  to  construction,  and  did  not  mean 
what  it  expressed.  It  would  be  difficult  to  find  a  statutory  provision 
more  plainly  or  concisely  worded.  The  construction  of  the  statute, 
so  called,  was  a  plain  violation  of  it  terms,  and  that  too  in  violation  of 
the  general  rule  that  statutes  shall  not  be  retroactive.  The  court  say : 

"This  question,  viz.,  whether  the  present  statute  of  limitations  can 
be  held  to  have  begun  to  run  as  a  bar  at  a  period  anterior  to  its  taking 
effect,  was  involved  in  The  State  v.  Swope,  7  Ind.  91,  and  it  was  re- 

(e)  Peerless  v.  Watertown,  6  Biss.  Brown,   28    Ind.   347;    The    State  v. 
79;    Adamson   v.  Davis,  47  Mo.  268;  Swope,  7  Ind.  91;   Dale  i\  Frisbie,  59 
State  v.   Swope,  7  Ind,  91 ;    Leard  v.  Ind.  530;  Pritchard  v.  Spencer,  2  Ind. 
Leard,  30  Ind.  171.  486;  Manchester  r.  Dodrid-e,  3  Ind. 

(f )  E.  S.  1881,  §  1289;  McEntire  v.  360;  Gimbel  v.  Smidth,  7  Ind.  627. 


X.]  LIMITATIONS   OF  ACTIONS.  175 

solved  in  the  affirmative.  But  section  801  of  the  code  seems  not  to 
have  been  considered  on  that  occasion,  and  it  was  doubtless  not  brought 
to  the  attention  of  the  court.  That  section  furnishes  a  rule  of  con- 
struction which  is  binding  upon  us,  andean  notbedisregarded,  however 
well  satisfied  we  may  be  that  in  a  given  case  it  would  be  mischievous. 
It*  application  in  its  broadest  sense  to  some  provisions  of  the  code 
would  probably  be  found  to  work  results  astonishing  as  well  as  novel, 
and  also  to  furnish  somewhat  convincing  evidence  that  the  rules  for  the 
construction  of  statutes  which -the  common  law  furnishes  and  which 
have  grown  out  of  the  experience  and  wisdom  of  ages,  are  quite  as 
well  calculated  to  accomplish  just  ends.  The  language  of  the  section 
is  itself,  however,  subject  to  construction  and  limitation.  It  might, 
taken  alone,  receive  an  interpretation  without  violence  to  its  terms, 
and,  indeed,  without  departing  from  the  strictly  literal  meaning  of  the 
words  employed,  which  would  forbid  the  retroactive  effect  of  almost 
every  section  in  the  whole  code,  for  there  are  few,  if  any,  which  it  is 
expressly  declared  shall  be  retroactive,  though  there  are  many  which 
are  so  framed  that  they  can  not  have  the  effect  which  their  terms  plainly 
signify,  and  Avhich  was  certainly  intended,  without  giving  them  a 
retrospective  as  well  as  prospective  operation.  To  limit  such  sections 
to  a  prospective  effect,  would  be  to  give  them  an  interpretation  entirely 
different  from  the  plain  import  of  the  language  in  which  they  are  ex- 
pressed; and  if  such  be  the  effect  of  section  801,  then  we  have  the 
novelty  of  an  act  required  by  one  of  its  own  provisions  to  be  so  con- 
strued as  to  mean  less  than  its  language  plainly  expresses.  But  it  is 
clear  that  this  was  not  the  intention  of  the  legislature.  This  section  is 
one  of  several  rules  of  construction  contained  in  article  48  of  the  code, 
and  the  first  section  of  that  article  (sec.  797  g)  expressly  provides  that 
these  rules  'shall  be  observed  when  consistent  with  the  context.'  This 
limits  the  application  of  section  801,  and  relieves  the  code  from  the 
peril  of  being  construed  in  some  of  its  parts  in  a  manner  which  would 
set  at  defiance  its  express  language  and  plain  import.  Now  the  stat- 
ute of  limitations  applicable  to  the  case  before  us  is  as  follows :  '  The 
following  actions  shall  be  commenced  within  the  periods  herein  pre- 
scribed after  the  cause  of  action  has  accrued,  and  not  afterwards : '  .  . 
This  language  can  not  be  limited  to  the  future  as  to  the  period  the 
completion  of  which  shall  bar  the  action." 

This  is  but  an  argument  of  the  court  against  a  plain  and  unequivocal 
provision  of  the  statute.  To  say  that  section  1289,  which  requires  an 
express  provision  in  the  statute  to  make  it  retroactive,  does  not  apply 
as  a  rule  of  construction  to  that  part  of  the  code  under  consideration, 

(g)  R.  S.I  881,?  1285. 


176  LIMITATIONS   OF  ACTIONS.  [CHAP. 

because  it  contains  no  such  express  provision,  is  certainly  laying  down 
a  rule  of  construction  that  would  "  work  results  astonishing  as  well  as 
novel."  There  is  nothing  in  the  clause  of  the  statute  of  limitations 
quoted  by  the  court  that  indicates  an  intention  to  make  it  retroactive, 
but,  if  there  were,  it  could  not  stand  against  the  rule  of  construction 
furnished  by  section  1289,  unless  it  contained  an  express  provision  that 
it  should  be  retroactive. 

In  the  later  case  of  Dale  v.  Frisbee,  59  Ind.  530,  a  different  rule  was 
expressed.  The  court  say : 

"It  is  doubtless  within  the  power  of  the  legislature  to  enact  a  stat- 
ute of  limitations  which  shall  have  a  retrospective  effect  when  it  is  so 
expressed  in  tiie  act;  and  the  general  rule  is  that  the  statute  in  force  at 
the  time  the  action  is  commenced  shall  govern ;  but  when  there  is  no 
proviso  in  the  act  saving  rights  of  action  accrued  before  its  passage, 
they  will  not  be  barred  by  it  until  after  a  reasonable  time  has  elapsed  to 
allow  the  parties  to  bring  their  action  thereon.  This  rule  must  be  re- 
garded as  settled  in  this  state.  We  are  aware  that  the  case  of  McEn- 
tire  v.  Brown,  28  Ind.  347,  presses  against  this  rule,  but  it  does  not 
overrule  it,  and,  upon  a  full  review  of  all  the  cases,  we  think  it  is  the 
true  guide." 

The  rule  here  laid  down,  so  far  as  it  holds  that  where  there  is  no  pro- 
vision in  the  statute  saving  causes  of  action  accrued,  such  causes  will 
not  be  barred  until  the  party  has  had  a  reasonable  time  in  which  to 
bring  his  action,  can  not  be  made  to  harmonize  with  the  doctrine  that 
the  courts  can  not  determine  what  is  a  reasonable  time.11 

If  the  legislature  is  the  sole  judge  of  what  shall  be  regarded  as  a 
reasonable  time,  it  must  certainly  be  expressed,  and  if  no  provision  is 
made  for  such  cases  by  the  legislature,  either  by  saving  causes  of  ac- 
tion accrued,  or  giving  a  reasonable  time  in  which  to  bring  the  action, 
it  is  idle  to  say  that  parties  shall  have  a  reasonable  time,  because  there 
is  no  power  to  give  it.  If  the  court  had  said  that  unless  the  statute  ex- 
pressly so  provides  or  saves  existing  causes  of  action,  it  is  not  retro- 
spective, and  does  not  affect  causes  of  action  accrued  before  its  passage, 
instead  of  saying  that  parties  should  have  a  reasonable  time  in  which 
to  sue,  the  two  rules  would  have  been  consistent,  and  in  my  judgment 
the  correct  result  would  have  been  reached. 

WHEN   STATUTE   COMMENCES   TO   RUN. 

255.  From  time  cause  of  action  accrues. — Having  considered 
the  time  when  the  statute  takes  effect,  I  pass  to  a  consideration  of  its 
effects  upon  causes  of  action  coming  within  its  provisions. 

(h)  Ante,  §  253. 


X.]  LIMITATIONS   OF  ACTIONS.  177 

TKfe  statute  is  made,  by  its  express  terras,  to  commence  to  run  from 
the  time  the  cause  of  action  accrues.  When  the  cause  of  action  ac- 
crues is  sometimes  a  question  of  some  difficulty,  and  one  that  the  courts 
are  frequently  called  upon  to  decide.  In  all  ordinary  cases,  either  of 
contract  or  tort,  the  time  when  the  cause  of  action  accrues  is  fixed 
either  by  the  terms  of  the  contract,  in  the  one  case,  or  the  time  of  the 
commission  of  the  wrongful  act  in  the  other;  but  these  cases  do  no" 
include  a  great  many  of  the  causes  that  fall  within  the  statute. 

WHEN   CAUSE  OF  ACTION   ACCRUES. 

256.  In  actions  on  promissory  notes  payable  in  bank. — In 
an  action  on  a  promissory  note  payable  in  a  bank  in  this  state,  the 
cause  of  action  accrues  after  the  full  three  days  of  grace.'    Mr.  Igle- 
hart,  in  his  work  on  Practice,  expresses  the  opinion  that  a  strict  con- 
struction in  favor  of  the  creditor  would  prevail,  thus  authorizing  him 
to  sue  on  the  last  day  of  graced     But  the  supreme  court,  in  the  case 
of  Benson  v.   Adams,  decided  since  this  opinion  was  expressed,  is 
clearly  the  other  way,  holding  that  the  maker  has  all  of  the  last  day 
of  grace  in  which  to  pay,  and  suit  can  not  be  brought  until  the  next 
day  thereafter. k 

The  statute  of  limitations  was  not  involved  in  the  case,  but  if  the 
action  could  not  be  brought,  the  statute  would  not  run. 

257.  In  actions  against  agents,  factors,  and  attorneys. — In 
actions  against  agents,  attorneys,  factors,  personal  representatives,  and 
persons  occupying  a  fiduciary  capacity,  the  cause  of  action  does  not  ac- 
crue until  there  is  a  demand  for  payment  or  an  accounting,  and  the 
statute  commences  to  run  from  the  time  of  such  demand.1     But  it  has 
been  held  that  where  a  real  estate  broker  agrees  with  the  owner,  for  a 
compensation,  to  sell  real  estate  for  a  certain  price,  but  sells  it  for 
more,  and  conceals  the  fact  that  he  has  sold  for  a  higher  price,  and  re- 

(i)  Benson  v.  Adams,  69  Ind.  353;         (1)  Judah   v.    Dyatt,    3    Blkf.   324; 

Hathaway  v.  Hathaway,  2  lud.  513;  Armstrong  v.  Smith,  3  Blkf.  251;  Rath- 

Baley  v.  Ricketts,  4  Ind.  488  ;  Adams  burn  v.  Ingalls,  7  Wend.  320;  Taylor 

<?.  Dale,  29  Ind.  273;    Kirkpatrick  v.  v.  Bates,  5  Cow.  376;  Jones  v.  Gregg, 

Alexander,  44  Ind.  595;   Abel  v.  Al-  17  Ind.  84;  Phillips  v.  Wills,  2  Ind. 

exander,  45  Ind.  523;  Kirkpatrick  v.  325;   Hannum  v.  Curtis,  13  Ind.  206; 

Alexander,  60  Ind.  95;  Helphenstine  Kyser  v.  Wells,  60  Ind.  261  ;  Black?'. 

v.  The  Vincennes  Nat.  Bank,  65  Ind.  Hersch,  18  Ind.  342;  Bougherw. Scoby, 

582.  23   Ind.   583;    Lynch   v.   Jenning,  43 

(j)  Iglehart's  PI.  and  Prae.  90.  §  33.  Ind.  276,  290;    Dodds  v.  Vannoy,  61 

(k)  Benson  v.  Adams,  69  Ind.  353.  Ind.  89. 
12 


178  LIMITATIONS   OF  ACTIONS.  [CHAP. 

tains  the  excess  over  and  above  the  price  agreed  upon,  no  demand  is 
necessary  in  an  action  to  recover  such  excess.10 

This  is  the  rule  where  an  agent  receives  money  for  a  specific  purpose, 
but  converts  it  to  his  own  use.  In  such  case,  no  demand  is  necessary, 
and  the  statute  commences  to  run  from  the  time  of  the  conversion." 

258.  Actions  against  trustees  and  to  enforce  subsisting 
trusts. — Prior  to  the  code,  it  was  held  that  the  statute  of  limitations 
did  not  apply  to  such  technical  continuing  trusts  as  were  exclusively 
within  the  jurisdiction  of  a  court  of  equity,  and  that  so  long  as  the 
trustee  recognized  the  existence  of  the  trust  the  statute  would  be  no 
bar;  but  when  the  trust  was  openly  disavowed  by  the  trustee,  the 
statute  would  commence  to  run.0  This  is  not  on  the  ground  that  the 
jurisdiction  is  in  equity  ;  for,  while  it  is  said  that  courts  of  equity  are 
not  bound  by  the  statute  of  limitations,  they  are,  as  a  rule,  governed 
by  it.P 

In  the  case  of  Raymond  v.  Simonson  a  distinction  is  made  between 
technical  and  continuing  trusts,  over  which  courts  of  equity  have  ex- 
clusive jurisdiction,  and  such  trusts  as  are  cognizable  in  courts  of  law. 
The  court  say,  after  laying  down  the  rule  that  trusts  are  not  within  the 
statute  of  frauds:  "  The  trusts  coming  within  this  rule  are  direct 
trusts;  technical  and  continuing  trusts,  which  are  not  cognizable  at 
law,  but  which  are  mere  creatures  of  a  court  of  equity,  and  fall  within 
the  proper  and  exclusive  jurisdiction  of  chancery.  There  are  numerous 
eventual  and  possible  trusts,  that  are  raised  by  implication  of  law  and 
otherwise,  that  fall  within  the  statute.  .  .  .  The  sound  rule,  then, 
is  that  the  trusts  not  reached  or  affected  in  equity  by  the  statute  of 
limitations  are  technical  and  continuing  trusts,  of  which  courts  of  law 
have  no  cognizance.*5  So  long  as  such  a  trust  as  that  is  continuing  as 
a  trust,  acknowledged  or  acted  upon  by  the  parties,  the  statute  can  not 
apply;  but  so  soon  as  the  trustee  denies  the  right  of  his  cestui  que 
trust,  and  his  possession  becomes  adverse,  lapse  of  time  from  that  period 
may  constitute  a  bar  in  equity." 

It  was  further  held  that,  where  court    of  equity  and  of  law  had 

(m)  Love  r.  Hoss,  62  Ind.  255.  Blkf.  77 ;  Smith  v.  Galloway,  7  Blkf. 

(n)  Spencer  v.  Morgan,  5  Ind.  146;  86;  Kane  v.  Bloodgood,  11  Am.  Dec. 
Ferguson  v.  Dunn,  28  Ind.  58;  Robin-  417   (7  Johns.  Ch.  90);  Love  v.  Wat- 
son r.  Skipworth,  23  Ind.  311 ;  Story  kins,  40  Cal.  547. 
on  Bailments,  §  107;   Catterlin  v.  Som-  (p)  Story's  Eq.  PI.,  §  751  et  seq. 
merville,  22  Ind.  482.  (q)  Citing    Deconche  v.  Savetier,  3 

(o)  Cunningham  v.  McKindley,  22  Johns.   C.  R.  190;  1    Fonb.    Eq.   240, 

Ind.  149;  Oliver  v.  Piatt,  3  How.  ( U.  note;  Kane  v.  Bloodsrood,  7  Johns.  C. 

S.)    333;     Kaymond    r.    Simon*<>n,    4  R.  9^. 


X.]  LIMITATIONS  OF  ACTIONS.  179 

concurrent  jurisdiction  of  the  action,  the  statute  of  limitations  would 
be  a  bar.  The  action  was  one  against  the  administrator  of  a  guardian, 
to  recover  money  alleged  to  have  been  received  by  such  guardian  and 
not  accounted  for,  and  it  was  held  that  the  statute  of  limitations  would 
not  bar  the  action.  (1) 

Smith  v.  Galloway  was  a  suit  in  chancery  by  a  distributee  of  an  es- 
tate against  the  administrator,  and  it  was  held  that  the  administrator 
was  a  trustee  for  the  person  entitled  to  distribution,  that  the  trust  was 
one  exclusively  within  the  jurisdiction  of  a  court  of  chancery,  and 
the  statute  of  limitations  would  not  bar  the  action. 

These  cases  were  no  doubt  correctly  decided  before  the  code  was 
enacted.  But  since  the  code  abolishes  the  distinction  between  actions 
at  law  and  suits  in  equity,  so  far  as  the  practice  is  concerned,  and  pro- 
vides that  there  shall  be  but  one  action,  denominated  a  civil  action, 
and  the  statute  of  limitations  being  a  part- of  the  code,  and  made  ex- 
pressly to  apply  to  civil  actions,  the  question  is  whether  the  distinctions 
made  by  the  cases  cited  still  exist.  As  all  causes  of  action  are  now 
cognizable  by  courts  of  law,  the  line  of  distinction  can  not  be  main- 
tained as  a  question  of  jurisdiction.  Whether  it  can  still  be  maintained 
by  the  nature  of  the  action  is  a  more  serious  question,  and  one  that  is 
not  answered  by  the  decisions  made  under  the  code. 

The  case  of  Matlock  v.  Todd,  25  Ind.  128,  bears  somewhat  upon  the 
point,  and  recognizes  the  equitable  rule  that  actions  for  fraud  do  not 
commence  to  run  until  the  fraud  is  discovered,  and  on  this  point  cites 
the  case  of  Raymond  v.  Simonson  with  approbation.  But  this  case 
has  been  overthrown  by  later  decisions,  and  is  clearly  in  the  face  of 
the  statute,  which  makes  the  statute  to  run  unless  the  fraud  is  con- 
cealed.1 

The  case  of  Pilcher  v.  Flynn,  30  Ind.  202,  holds  that  the  statute  of 
limitations  applies  as  well  to  suits  in  equity  as  to  actions  at  law,  thereby 
greatly  changing  the  law  in  force  when  the  case  of  Raymond  v.  Simon- 
son  was  decided.  The  case  of  Matlock  v.  Todd  is  disapproved. 
Neither  of  these  cases  bears  directly  upon  the  point  under  consideration, 
but  the  ruling  of  the  court  is  that  the  statute  of  limitations  applies  as 
well  to  suits  in  equity  as  at  law.  The  court  should  have  said  there 
was  no  such  thing  under  the  code  as  suits  in  equity  and  actions  at  law. 
It  is  not  the  statute  of  limitations  alone  that  changes  the  law  in  force 
at  the  time  Raymond  v.  Simonson  was  decided.  The  term  civil  action 
covers  all  kinds  of  actions,  Avhether  formerly  cognizable  at  law  or  in 
equity,  and  the  statute  of  limitations  was  clearly  intended  to  apply  to 
all  such  actions.  After  providing  when  certain  specific  actions  shall 

(r)  Post,  $  284,  285.  Ind.  452;  Newsom  v.  Board  of  Comm'rs, 

(lj  See  also  Musselmiin  v.  Kent,  33     etc.,  103  Ind.  520. 


180  LIMITATIONS   OF  ACTIONS.  [CHAP. 

be  commenced,  it  is  provided  in  express  terms  that  "all  actions  not 
limited  by  any  other  statute  shall  be  brought  within  fifteen  years."3 

The  case  of  Potter  v.  Smith  states  the  rule  thus,  after  quoting  the 
language  of  the  statute,  that  "  there  shall  be,  in  this  state,  hereafter, 
but  one  form  of  action  for  the  enforcement  or  protection  of  private 
rights,  or  the  redress  of  private  wrongs,  which  shall  be  denominated  a 
civil  action  :  "  "  And,  as  a  part  of  the  same  system,  the  legislature  pro- 
vided for  the  limitations  of  civil  actions,  and  enacted  that  certain  actions 
should  be  brought  within  certain  specified  times,  and  that  all  actions, 
not  limited  by  any  other  statute,  shall  be  brought  within  fifteen  year? ; 
but  that,  in  special  cases,  where  a  different  limitation  is  prescribed  by 
statute,  the  provisions  of  that  article  should  not  apply.  Under  these 
provisions  it  is  quite  clear  that  the  legislature  intended  to  fix  certain 
and  definite  times  within  which  all  actions  should  be  brought,  whether 
they  would,  before  the  code,  have  been  actions  at  law  or  suits  in  equity, 
and  to  leave  nothing  in  this  respect  to  doubt  and  uncertainty ;  the  time 
limited  depending  upon  the  nature  and  purposes  of  each  particular 
action." 

The  action  was  brought  by  an  heir,  against  the  administrator,  to  set 
aside  a  sale  where  the  administrator  was  the  purchaser,  and  was  one 
that  wrould,  before  the  code,  have  fallen  within  the  rule  laid  down  in 
Kaymond  v.  Simonson,  and  would  not  have  been  barred  by  the  statute 
of  limitations ;  but  it  was  held,  that  the  general  clause  of  the  statute, 
limiting  the  time  within  which  the  action  should  be  brought  to  fifteen 
years,  applied,  and  would  bar  the  action. 

The  question  remains,  however,  "  When  does  the  cause  of  action 
accrue  ?  "  As  a  question  of  the  right  to  the  possession  of  property  the 
statute  does  not  commence  to  run  so  long  as  the  trustee  holds  posses- 
sion, as  such,  because  his  possession  is  the  possession  of  the  cestui  que 
trust;  and,  until  he  openly  disavows  the  trust,  and  claims  to  hold  ad- 
versely, there  is  no  cause  of  action.4 

But  if  the  cestui  que  trust  has  in  fact  a  right  of  action,  for  money 
that  should  be  paid  or  accounted  for  by  the  trustee,  there  is  no  reason 
why  the  statute  should  not  commence  to  run  as  in  other  cases.  If  a 
demand  is  necessary,  to  entitle  the  cestui  que  trust  to  sue,  the  statute 
should  commence  to  run  from  the  demand.  (1)  If  no  demand  is  necessary 
the  statute  should  commence  to  run  from  the  time  the  trustee  is  bound 
to  pay  or  account,  or  do  any  act  that  can  be  enforced.  In  short,  there 
should  be  no  distinction  between  actions  growing  out  of  trusts  and  those 

(s)  R.  S.  18£1,§294;  Potter?. Smith,         (t)  Cunningham   v.  McKindley,  22 
36  Ind.  231;  Wallace  v.  Metzker,  41     Ind.  149;  Story's  Eq.  Jur.  §  1520a. 
Ind.  346;  Harper  v.  Terry,  70  Ind.  264.         (\)  Langsdalev.  Woollen,  99  Ind.  575. 


X.]  LIMITATIONS   OF  ACTIONS.  181 

growing  out  of  other  matters ;  and  whether  the  cause  of  action  was 
cognizable  in  a  court  of  equity  or  a  court  of  law  ought  not  to  affect  the 
question." 

It  must  be  admitted,  however,  that  the  latest  decisions  of  the  su- 
preme court  can  not  be  harmonized  with  this  view.  In  a  late  case  the 
court  say:  "In  considering  the  sufficiency  of  these  paragraphs  of 
answer,  it  must  be  borne  in  mind  that  the  officer  and  the  stockholder  of 
a  bank  bear  to  each  other  the  relation  of  a  trustee  to  a  cestui  que  trust ; 
and,  that  relation,once  existing,  will  continue  until  it  is  dissolved  in  some 
legal  mode,  or  until  it  is  openly  disavowed  by  the  trustee,  who  insists 
upon  an  adverse  right  and  interest,  which  is  fully  and  unequivocally 
3nade  known  to  the  cestui  que  trust."  We  need  hardly  say,  for  it  is  self- 
evident,  that  while  the  relation  of  trustee  and  cestui  que  trust  might 
continue  to  exist  between  the  appellants  and  the  appellee's  relators, 
the  statute  of  limitations  would  never  begin  to  run  against,  and  would 
never  constitute  a  bar,  to  the  cause  of  action. "w 

259.  Where  an  officer  or  other  person  is  bound  by  statute 
to  pay  or  account  at  a  fixed  time. — Where  the  law  makes  it  the 
duty  of  an  officer  or  other  person  to  pay  over  money  or  account  at  cer- 
tain times,  the  cause  of  action  accrues  upon  failure  to  pay  or  account, 
at  the  time  fixed,  without  a  demand,  and  the  statute  commences  to 
run  from  that  time.1 

WHEN   A   DEMAND   IS   NECESSARY. 

260.  Rules  established  by  decided  cases. — The  supreme  court 
has  laid  down  certain  fixed  rules  for  determining  when  a  demand  is 
necessary,  as  follows : 

"  1.  When  the  time  and  place  of  payment  are  fixed  in  the  contract, 
no  demand  is  necessary  before  suit. 

"  2.  When  the  time  of  payment  is  fixed  and  the  place  is  left  unde- 
termined by  the  contract,  no  demand  is  necessary. 

"3.  If  the  contract  be  to  pay  on  demand,  a  special  demand  before 
suit  is  necessary,  though  on  a  contract  to  pay  money  such  demand  is 
not  necessary. 

"  4.  When  the  place  of  payment  is  fixed  by  the  contract,  but  the 
time  is  left  undetermined,  a  demand  before  suit  is  necessary. 

(u)  Iglehart's  PI.  and  Prac.  90,  §  34.         (w)  Albert  v.  The   State,   65   Ind. 

(v)  Citing  Oliver  r.  Piatt,  3  How.  413,  420;  Earle  v.  Peterson,  67  Ind. 
(U.  S.)  333;  Cunningham  v.  McKind-  503. 

ley,  22  Ind.  149.  (x)  Moore,  Adm'r,  v.  The  State,  55 

Ind.  3GO. 


182  LIMITATIONS   OF  ACTIONS.  [CHAP. 

"5.  When  both  the  time  and  place  of  payment  are  left  undeter- 
mined by  the  contract,  a  demand  before  suit  is  necessary."  * 

And  these  rules  have  been  very  closely  adhered  to  in  subsequent  de- 
cisions.2 The  demand  must  be  made  within  a  reasonable  time.(l) 

The  rule  that  no  demand  is  necessary  where  a  note  is  made  payable 
on  demand  seems  to  be  a  strange  one,  but  it  is  well  supported  by  au- 
thority. The  rule  is  that  in  such  case  the  bringing  of  the  suit  is  a 
sufficient  demand.  In  this  class  of  cases  the  statute  of  limitations' 
commences  to  run  from  the  date  of  the  note.8 

But  where  the  note  is  made  payable  "  after  demand,"  "  after  sight," 
or  "after  notice,"  a  demand  must  be  made,  or  notice  given,  within  a 
reasonable  time,  and  the  statute  does  not  commence  to  run  until  such 
demand  or  notice.*' 

261.  Notes  payable  -when  maker  "is  able." — Where  a  note 
is  made  payable  "  when  the  maker  is  able,"  or  "  when  he  can,"  the  note 
matures  when  the  maker  is  able  to  pay,  and  the  statute  commences  to 
run  from  that  time.     If  the  maker  is  able  to  pay  when  the  note  is 
given,  it  matures  at  once.c 

262.  Actions  to  recover  personal  property. — In  actions  to  re- 
cover personal  property,  the  question  whether  a  demand  is  necessary 
depends  upon  the  manner  in  which  the  defendant  obtained  possession. 
If  the  taking  of  the  property  in  the  first  instance  was  wrongful,  no 
demand  is  necessary,  and  the  statute  runs  from  the  time  the  property 
was  taken  ;  but  where  the  property  came  into  the  hands  of  the  defend- 
ant rightfully,  and  he  is  charged  with  detaining  it  without  right,  a  de- 
mand must  be  made,  and  the  statute  runs  from  the  demand/ 

But  where  the  party  who  comes  into  the  possession  of  property 

(y)   Frazee  v.  McChord,  1  Ind.  224;  (1)  High  v.  Board  of  Comm'rs,  etc., 

Cole  v.  Wright,  70  Ind.  179,  188.  92  Ind.  580. 

(z)  Mountjoy  v.  Adair,  1  Ind.  254;  ^a)  Ang.  on  Lim.,  §95;  Wenman  v. 

Poust  v.  Hannah,  1  Ind.  '273;  Maggart  Mohawk,  etc.,  Ins.  Co.,  28  Am.  Dec. 

v.  Chester,  4  Ind.  124;    Johnson  v.  Sey-  464. 

mour,  19  Ind.  24;    Ohio,  etc.,  R.  R.  Co.  (b)  Ang.  on  Lim.,  §§  96,  97. 

•D.Cramer,  23  Ind.  49J,    Fankboner  v.  (c)  Veasey  v.    Reeves,  6   Ind    406; 

Fankboner,  20  Ind.  62:  Mercer  v.  Pat-  Barnett  v.  Bullett,  11  Ind.  310. 

terson,  41    Ind.  440;    Bradfield  v.  Me-  (d)   Wood    v.   Cohen,   6    Ind.   455; 

Cormick,  3  Blkf.  161;  Story  on  Prom.  Evans  v.  Devano,  5  Blkf.  588;   Conner 

Notes,  §  29;    Higert  v.  The  Trustees,  v.  Comstock,  17  Ind.  90;  Underwood  v. 

etc.,  53  Ind.  326;    McCulloch  v.  Cook,  Tatham,  1   Ind.  276;   Black  v.  Hersch, 

34  Ind.  290;    The  School  Town,  etc..  v.  18  Ind.  342. 
Gebhart,    61    Ind.    187;     R.  S.    1881, 
§  368;   Brown  v.  White,  3    Blkf.  431; 
Emerick  v.  Chesrown,  90  Ind.  47. 


X.]  t         LIMITATIONS   OF  ACTIONS.  183 

rightfully  sells  it  or  converts  it  to  his  own  use,  he  is  liable  to  the  owner 
for  its  value  without  a  demand.6 

263.  In  an  action  by  one  partner  against  another  for  an 
accounting. — One  partner  can  not  maintain  an  action  against  another 
for  an  accounting  in  their  partnership  business  without  a  demand. 
Upon  the  death  of  one  of  the  partners,  it  is  the  duty  of  the  survivor 
to  settle  the  business  of  the  partnership,  and  he  is  only  accountable  to 
the  heirs,  or  personal  representatives  of  the  deceased  partner  for  any 
balance  remaining  in  his  hands  after  such  settlement.     Therefore,  no 
action  can  be  maintained  against  him  until  after  the  settlement  of  the 
partnership  business  and  a  demand  for  an  accounting.     The  statute 
does  not  commence  to  run  until  such  demand. f 

264.  Demand   excused  by  some  act  of  the  defendant. — 
There  are  cases  where,  under  the  rules,  a  demand  would  be  necessary, 
but  an  excuse  may  be  shown  for  the  failure  to  make  such  demand,  as, 
for  instance,  in  an  action  for  specific  performance,  where  the  defendant 
has,  by  his  own  act,  put  it  beyond  his  power  to  perform  the  contract 
on  his  part  at  the  time  stipulated,  and  other  cases  of  a  like  nature.    In 
such  case,  the  statute  runs  from  the  time  the  contract  should  be  per- 
formed.8 • 

• 

265.  When  cause  of  action  accrues  where  a  tender  is  nec- 
essary.— In  some  cases,  as,  for  instance,  in  the  sale  of  personal  prop- 
erty, it  is  necessary  to  tender  the  price  in  order  to  pass  the  title  to  the 
property,  and  no  action  can  be  maintained  until  such  tender  is  either 
made  or  waived  by  the  opposite  party.     In  all  cases  where  a  tender  is 
necessary  before  a  suit  can  be  brought,  the  rule  is  the  same  as  in  case 
of  demand,  and  the  statute  commences  to  run  from  the  time  the  tender 
is  made.h 

266.  Effect  of  statute  where  action  may  be  in  tort  or  upon 
contract. — In  some  cases,  where  a  cause  of  action  exists  for  a  tort, 

(e)  Furguson  v.  Dunn,  28  Ind.  58;     v.  Jones,  44  Ind.  136,  145;    Krutz  v. 
The   Jeffersonville,   etc.,   K.  E.  Co.  v.     Craig,  53  Ind.  561 ;  Cobble  v.  Tomlin- 
Gent,  35  Ind.  39;   Nelson  v.  Corwin,     son,  50  Ind.  550. 

59  Ind.  489;  Proctor  v.  Cole,  66  Irtd.  '  (g)  Boyle  v.  Guysinger,  12  Ind.  273; 
576;  Bunger  v.  Roddy,  70  Ind.  26;  Hafford  v.  The  State,  6  Ind.  365 ;  Car- 
Robinson  v.  Skipworth,  23  Ind.  311;  penter  v.  Lockhart.  1  Ind.  434. 
Spencer  v.  Morgan,  5  Ind.  146;  Smith  (h)  Wainscott  v.  Smith,  68  Ind.  312; 
v.  Stewart,.  5  Ind.  220;  Snyder  v.  Ba-  Clark  v.  The  Continental,  etc.,  Co.,  57 
ber,  74  Ind.  47.  Ind.  135;  Houston  v.  Minor,  5  Blkf. 

(f)  R.  S.  1881.  \  6046  etseq.;  Skillen     89;  Newly  v.  Rogers,  54  Ind.  193. 


184  LIMITATIONS   OF  ACTIONS.  [CHAP. 

the  party  may  waive  the  tort,  and  sue  as  upon  contract ;  and  in  others 
the  contract  may  be  waived  and  an  action  in  tort  be  resorted  to.' 
When  such  election  is  made,  the  form  of  the  action  determines  what 
the  limitation  shall  be. 

267.  Actions  on  open  and  current  accounts. — "In  an  action 
to  recover  a  balance  due  upon  a  mutual  open  and  current  account  be- 
tween the  parties,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  the  date  of  the  last  item  proved  in  the  account  on  either  side."j 

268.  Meaning  of  the  term  "open  and  current  account." 
— "  In' the  statute  of  1838,  the  term  '  running  accounts'  was  used,  and 
it  was  held  to  mean  '  mutual  and  reciprocal  demands  between  the  par- 
ties which  remain  unsettled. '"k 

And  the  same  meaning  has  been  given  to  the  present  statute.1 
In  Prenatt  v.  Runyan  the  court  say:  "The  items  of  the  account 
were  all  on  one  side,  there  being  none  on  the  other  except  credits  of 
payments.  We  think  the  terms  mutual,  open,  and  current  account 
mean  something  more  than  charges  on  one  side  and  credits  of  payment 
on  the  other.  In  the  language  of  an  elementary  writer,  mutual  ac- 
pounts  are  made  up  of  matters  of  set-off.  There  must  be  a  mutual 
credit  founded  on  a  subsisting  debt  on  the  one  side,  or  an  express  or 
implied  agreement  for  a  set-off  *of  mutual  debts.  .  .  .  There  must 
be  a  mutual,  or,  as  it  has  been  expressed,  an  alternate  course  of  deal- 
ing. Where  payments  on  account  are  made  by  one  party  for  which 
credit  is  given  by  the  other,  it  is  an  account  without  reciprocity,  and 
only  upon  one  side."m 

Where  the  action  is  for  work  and  labor  performed,  consisting  of  sep- 
arate and  distinct  items,  but  embraced  in  one  entire  contract,  the  stat- 
ute does  not  run  against  the  claim  for  any  of  the  items  until  the  en- 
tire work  is  completed.  The  cause  of  action  does  not  accrue  for  any 
of  the  work  until  the  work  is  completed,  as  required  by  the  contract." 

EXCEPTIONS. 

269.  Statutory  exceptions. — The  most  important  questions,  a& 
well  as  the  greater  number  connected  with  the  statute  of  limitations, 

fi)  Pom.  Bern.,  §  567  et  seq.  (1)  Prenatt  v.  Kunyon,  12  Ind.  174. 

(j)  R.  S.  1881,  §295;  Sanders  v.  San-  (m)  Citing  Ang.  on  Lim.  (3d  ed.) 

ders,  48  Ind.  84;  Harper  v.  Harper,  57  §  149.  See  also  Perrill  v.  Nichols,  89/ 

Ind.  547.  Ind.  444. 

(k)  Brackenridge  v.  Baltzell,  1  Ind.  (n)  McKinney  v.  Springer,  3  Ind. 

333 ;  Knipe  v.  Knipe,  2  Blkf.  340.  -  59;  Littler  v.  Smily,  9  Ind.  116- 

Wright  v.  Miller,  63  Ind.  220. 


X.]  LIMITATIONS   OF  ACTIONS.  185 

have  grown  out  of  the  exceptions.  The  provisions  of  the  statute  fix- 
ing the  times  in  which  actions  shall  be  brought  are  in  the  main  clear 
and  easily  understood.  But  to  these  rules  there  are  several  very  im- 
portant exceptions  named  in  the  statute  which  will  now  be  considered. 
They  are : 

1.  In  case  of  set-off. 

2.  Where  the  person  is  laboring  under  legal  disability  when  the 
( a  use  of  action  accrues. 

3.  Where  the  defendant  is  a  non-resident  of  the  state  or  absent  on 
business. 

4.  Where  one  of  the  parties,  dies  before  the  statute  has  run  its  full 
time. 

5.  Where  the  plaintiff  has  once  brought  his  action,  and  without  his 
negligence  the  action  has  abated. 

6.  Where  the  party  liable  to  be  sued  has  concealed  the  cause  of 
action. 

7.  Where  there  is  a  new  promise  in  writing  to  pay  the  debt. 
These  are  exceptions  expressly  named  in  the  statute.     There  are 

others  that  are  recognized  by  the  adjudicated  cases  that  will  be  con- 
sidered farther  on  in  this  chapter. 

SET-OFF. 

270.  As  a  defense  not  barred. — The  statute  provides  that  "a 
party  to  any  action  may  plead  or  reply  a  set-off  or  payment  to  the 
amount  of  any  cause  of  action  or  defense  notwithstanding  such  set-off 
or  payment  is  barred  by  the  statute."  ° 

This  section  of  the  statute  simply  permits  a  party  who  holds  a  claim 
that  is  barred  by  the  statute  of  limitations,  so  as  to  prevent  his  suing 
upon  it,  to  use  it  as  a  set-off  against  a  claim  brought  against  him,  either 
as  a  cause  of  action  or  as  a  defense  to  an  action  brought  by  him.  His 
right  to  enforce  such  claim  can  not  go  beyond  its  use  as  a  defense.  Al- 
though the  claim  may  exceed  the  cause  of  action  of  his  adversary,  no 
judgment  can  be  recovered  for  the  excess,  but  in  such  case  his  set-off 
would  defeat  the  action.  If  the  set-off  is  less  than  the  claim  of  his 
adversary,  he  is  entitled  to  credit  for  his  claim  if  established.15 

In  the  case  of  Fox  v.  Barker  it  was  contended  that  the  statute  only 
applied  to  such  items  of  set-off  as  had  accrued  after  the  demand  sued 
upon,  but  the  court  held  otherwise.  That  the  statute,  being  general  in 

(o)  K.   S.   1881,   §   307 ;    Rennick  v.         (p)  Livingood  v.  Livingood,  6  Blkf. 
Chandler,  59  Ind.  354;  Armstrong  v.     268;     Fox    v.    Barker,    14    Ind.   309; 
Caesar,  72  Ind.  280;   Wurring  v.  Hill,     Fankboner  v.  Fankboner,  20  Ind.  62. 
89  Ind.  497.  For  the  rule  as  to  counter- 
claim, see  Eve  ».  Louis,  91  Ind.  457. 


186  LIMITATIONS   OF  ACTIONS.  [CHAP. 

its  terms,  applied  to  all  matters  of  set-off,  no  matter  whether  the  cause 
of  action  upon  them  accrued  before  or  after  the  cause  of  action  against 
which  they  are  pleaded. 

LEGAL  DISABILITIES. 

271.  Statute  does  not  apply  where  party  is  laboring  under 
legal  disability. — "Any  person  being  under  legal  disabilities  when 
the  cause  of  action  accrues,  may  bring  his  action  within  two  years  after 
the  disability  is  removed. "q 

This  statute,  if  taken  literally,  would,  in  many  cases,  limit  the  time 
in  which  persons  laboring  under  disabilities  might  sue,  to  a  much 
shorter  period  than  other  persons.  They  have,  by  the  terms  of  the  stat- 
ute, but  two  years  after  their  disability  is  removed  in  which  to  sue, 
while  the  statute  itself  might  give  them  a  much  longer  time,  if  the 
disability  should  be  removed  before  the  statute  had  run  its  full  time ; 
but  the  intention  of  the  statute,  though  not  so  expressed,  is  to  add  to 
and  not  take  away  from  the  time  given  by  it  in  which  to  sue.  If  the 
cause  of  action  has  accrued  while  the  party  entitled  to  sue  is  laboring 
under  legal  disability,  and  the  limitation  would  otherwise  have  run 
within  a  year  of  its  full  time,  the  effect  of  this  section  would  be  to 
add  one  year  to  the  time.  If  the  full  time  named  by  the  statute  has 
run  when  the  disability  is  removed  the  statute  gives  two  years  in  which 
to  sue.  If  the  time  has  not  run  within  two  years  of  the  full  time  the 
section  has  no  effect/ 

272.  Meaning  of  the  term  "  under  legal  disabilities."— 
The  term  "legal  disabilities"  includes   "persons  under  the  age  of 
twenty-one  years,  or  of  unsound  mind,  or  imprisoned  in  the  states 
prison,  or  out  of  the  United  States."8 

The  term  "of  unsound  mind"  includes  "idiots,  non-compotes,  luna- 
tics, and  distracted  persons."1  Under  the  code  of  1852,  married 
women  were  included  as  persons  laboring  under  legal  disabilities,"  but 
the  disability  of  married  women  has  been  removed. v 

(q)  R.  S.  1881,  I  296.  v.    Brewin,    52   Ind.  140;    Bauman   v. 

(r)  Hawkins   v.    Hawkins,   28   Ind.  Grubbs,  26  Ind.  41f). 
66;  The   Indiana,  etc.,   R.   R.   Co.   v.         (s)  R.  S.  1881,   §  1285;    Bauman  r. 

Oakes,  20  Ind.  9;   Miles  v.  Singerman,  Grubbs,  20  Ind.  419;  Hawkins  v.  Ha\\ 

24  Ind.  385;  Vancleve  v.  Milliken,  13  kins,  28  Ind   66. 
Ind.  105;  Vail  v.  Holton,  14  Ind.  344;         (t)  R.  S.  1881.  ??  1285,  2544. 
Breeding  v.  Shinn,  8  Ind.  125;  John-         (u)  2  R.  S.  1876,  p.  313,  §  797. 
son  v.  Pinegar,  41  Ind.  168;  Sun  man         (v)  R.  S.  1881,  §  5115;  Rosa  v.  Pra- 

ther,  103  Ind.  191. 


X.]  LIMITATIONS   OF  ACTIONS.  187 

273.  Where  more  than  one  legal  disability  exists.  — It  fre- 
quently happens  that  the  same  person  labors  under  more  than  one  dis- 
ability at  the  same  time.     If  more  than  one  disability  exists  at  the 
time  the  cause  of  action  accrues,  the  statute  does  not  commence  to  run 
until  all  are  removed." 

But  in  order  to  make  either  of  the  legal  disabilities  available,  it 
must  exist  at  the  time  the  cause  of  action  accrues.  Therefore,  if  but  one 
disability  exists  when  the  cause  of  action  accrues,  the  statute  will  not 
run  until  that  disability  is  removed,  and  the  party  has  two  years  after 
its  removal  to  bring  his  action ;  but  the  fact  that  another  disability  at- 
taches after  the  cause  of  action  accrues,  but  before  the  first  is  removed, 
does  not  affect  the  statute,  for  the  reason  that  it  did  not  exist  at  the 
time  the  action  might  have  been  brought,  and,  as  to  such  disability, 
the  statute  has  once  commenced  to  run  and  can  not  be  stayed.1 
Where  no  disability  exists,  when  the  cause  of  action  accrues,  its  opera- 
tion is  not  suspended  by  any  subsequent  disability.7 

274.  Effect  of  disability  in  case  of  appeals. — By  a  special 
provision,  parties  laboring  under  legal  disability  have  one  year  after 
the  disability  is  removed  in  which  to  appeal,2  and  the  disability  may  In- 
pleaded  in  the  supreme  court.3 

275.  Non-resident  of  the  state  or  absent  on  public  busi- 
ness.— The  statute  provides :   "  The  time  during  which  the  defendant 
is  a  non-resident  of  the  state  or  absent  on  public  business  shall  not  be 
computed  in  any  of  the  periods  of  limitation,  but  when  a  cause  has 
been  fully  barred  by  the  laws  of  the  place  where  the  defendant  resided, 
such  bar  shall  be  the  same  defense  here  as  though  it  had  arisen  in  this 

(w)  Iglehart's  PI.  and  Pr.  85,  §22;  Govern,  2  Sawyer  (U.S.),  515;  Mer- 

Jackson  v.  Johnson,  15  Am.  Dec.  433  c-er  v.  Selden,  1  How.  (U.  S.)  37;  Ho- 

(5  Cowen,  74).  gan  v.  Kurtz,  94  U.  S.  773. 

(x)  Ang.  on  Lim.,  \  197;  Thompson  (y)  Ruff's  Adnvr  v.  Bull,  16  Am. 

v.  Smith,  10  Am.  Dee.  457  (7  Sergeant  Dec.  290;  Adamson  v.  Smith,  12  Id. 

&  Rawle,  209);  Bensell  v.  Chancellor,  665;  Thompson  v.  Smith,  10  Id.  453; 

5  Wharton,  371;  Kankin  v.  Tenbrook,  Faysoux  v.  Prather.  9  Id.  691;  Demo- 

6  Watts,  388;  Lynch  v.  Cox,  23  Pa.  St.  rest  v.  Wynkoop,  8  Id.  467;  Jackson 
265;  McFarland  v.  Stone.  17  Vt.  165;  v.  Moore.  7  Id.  398;  Fitzhugh  r   An- 
Dernorest   v.   Wynkoop,  8    Am.  Dec.  derson,  3  Id. 625;  Harvey  v.  Tobey,  25 
467;  De  Kay  v.  Durrah,  2  Greenl.  (N.  Id.  430. 

J.)  294;  Fritz  v.  Joiner,  54  111.  101;  (z)   R.  S.  1881,   §  633;    Hawkins  v. 

Rogers  v.  Brown,  61  Mo.  187;  Swear-  Hawkins,  28  Ind.  66. 

inger  v.  Robertson,  39  Wis.  462;   Dan-  (a)   Hawkins   v.   Hawkins,    28   Ind. 

iel  v.  Day,  51  Ala.  431;  Harris  v.  Me-  66;  McEndree  v.McEndree,  12  Ind.97. 


188  LIMITATIONS  OF  ACTIONS.  [CHAP. 

state :  provided,  that  the  provisions  of  this  section  shall  be  construed 
to  apply  only  to  causes  of  action  arising  without  this  state"b 

It  is  not  necessary  that  the  defendant  should  be  absent  when  the 
cause  of  action  accrues.  If  he  is  absent  or  a  non-resident,  at  any  time 
after  the  cause  of  action  accrues,  the  operation  of  the  statute  is  thereby 
suspended  until  his  return.  The  effect  of  the  exception  is,  that  the 
time  of  the  defendant's  non-residence  or  absence  on  public  business 
must  be  added  to  the  limitation  fixed  by  the  statute.0 

276.  Section  297  only  applies  to  causes  of  action  that 
accrue  out  of  the  state. — The  section  expressly  provides  that 
its  provisions  shall  apply  only  to  causes  of  action  arising  out  of  the 
state.  Mr.  Iglehart,  in  his  work  on  Pleading  and  Practice,  says  of 
this  proviso :  "  But  there  seems  to  have  been  no  regard  paid  in  the 
decided  cases  to  the  place  where  the  cause  of  action  accrued,  and 
indeed  this  point  seems  neither  to  have  been  involved  nor  discussed  in 
any  case."  d 

The  learned  author  overlooks  the  fact  that  no  such  point  could  have 
been  involved  in  the  decided  cases  cited  by  him,  for  the  reason 
that  when  they  were  decided  there  was  no  such  provision  in  the 
statute.6  The  proviso  that  the  section  should  apply  only  to  causes  of 
action  arising  without  the  state  was  added,  by  way  of  amendment,  in 
1875.f  Prior  to  this  amendment,  the  section  applied  in  terms  .to  all 
causes  of  action,  whether  they  arose  within  or  Avithout  the  state.g  Nor 
is  it  strictly  correct  that  the  point  was  never  considered  in  the  decisions 
referred  to.  The  question,  whether  the  section,  as  first  enacted,  was 
not  intended  to  apply  only  to  causes  of  action  arising  out  of  the  state, 
was  one  not  free  from  doubt.  In  the  case  of  Van  Dorn  v.  Bodley, 
Buskirk,  J.,  in  a  very  able  and  exhaustive  dissenting  opinion,  main- 
tained that  the  statute  only  applied  to  causes  of  action  arising  out  of 
the  state.  The  opinion  contains  a  very  able  discussion  of  the  question, 
and  the  position  assumed  is  strongly  supported  by  the  authorities  cited. 
It  was  this  doubt  as  to  the  proper  construction  of  the  section  that  gave 
rise  to  the  amendment.  But  the  proviso  is  held  to  apply  only  to  the 
latter  clause  of  the  section ;  therefore  the  cases  cited,  so  far  as  they 
hold  that  a  cause  of  action  arising  in  this  state  may  be  barred  by  the 
statute  of  another  state,  can  have  no  force  under  the  present  statute.(l) 

(b)  R.  S.  1881,  §  297.  (f )  Acts  187n,  Spec.  Sess.,  p.  64. 

(c)  Rutherford  v.  Tevis,  5  Ind.  530;  (g)  Harris  v.   Harris,  38  Ind.   423; 
Lagon  v.  Neilson,  10  Ind.  183;  Cornell  Van    Dorn    v.    Bodley,    38   Ind.   402; 
v.  Goodrich,   21   Ind.   179;    Ulmer  v.  Wright  v.  Johnson.  4"2  Ind.  29. 

The  State,  14  Ind.  5'J.  (1)   Mechanic's  Build.  Ass'n  v.  Whit- 

(d)  Iglehart's  PI.  and  Pr.  p.  86,  \  23.     acre,  92  Ind.  547,  554 :  Vol.  3,  p.  382. 

(e)  2G.  &H.  161,  §21 6. 


X.]  LIMITATIONS   OF  ACTIONS.  189 

277.  What  is  meant  by  the  phrase,  "absent  on  public 
business." — As  has  been  said  by  the  supreme  court,  no  definite  rule 
can  be  laid  down  by  which  to  determine,  in  all  cases,  what  will  consti- 
tute such  an  absence  from  the  state  as  will  for  the  time  suspend  the 
operation  of  the  statute. 

.The  supreme  court  has  been  called  upon  to  give  a  construction  to 
this  clause  of  the  section,  and  say :  "  We  are  asked  by  the  parties  to 
the  record  to  give  a  construction  to  the  first  clause  or  sentence  of  sec- 
tion 216 h  of  the  practice  act.  .  .  .  The  question  is  asked  in  this 
case,  what  is  the  absence  on  public  business,  the  time  or  duration  of 
which  shall  not  be  computed  in  any  of  the  periods  of  limitation  ?  It 
is  difficult — so  difficult  as  to  be  almost  impossible — to  lay  down  a  gen- 
eral rule  which  shall  be  applicable  to  and  govern  all  cases  in  regard  to 
the  character  of  the  public  business,  the  duration  of  the  absence  as  to 
which  public  business  shall  not  be  counted  in  any  period  of  limitation. 
Indeed,  it  seems  to  us  that  it  is  hardly  a  case  for  a  general  rule;  but 
that  in  each  particular  case  it  must  be  determined,  from  the  facts  of  the 
case,  whether  the  public  business  was  or  was  not  of  such  a  character  as 
to  bring  the  case  within  the  provisions  of  the  statute.  ...  It 
seems  to  us  that  the  absence  of  the  defendant,  contemplated  in  this 
section  of  the  statute,  must  be  such  as  would  prevent  the  plaintiff,  during 
its  continuance,  from  enforcing  his  cause  of  action  by  a  judgment  in  per- 
sonam  againsj,  tfie  defendant.  If  the  absent  defendant  maintains  his  res- 
idence in  this  state,  so  that  such  service  of  process  can  be  had  on  him 
by  copy  as  would  authorize  the  rendition  of  a  personal  judgment 
against  him,  such  defendant  can  not  be  said  to  be  absent,  within  the 
meaning  of  that  word,  as  used  in  section  216  of  the  code,  and  the  time 
of  such  absence  of  such  defendant  will  be  computed  in  any  of  the  pe- 
riods of  limitation." ' 

This  construction  seems  to  be  equivalent  to  saying  that  the  clause 
'construed  is  meaningless.  If  the  defendant  is  a  resident  of  the  state, 
he  can  be  served  by  copy.  Service  by  copy  is  personal  service,  upon 
which  a  judgment  in  personam  may  be  taken.-* 

If  the  defendant  must  be  a,  non-resident  of  the  state  to  constitute 
such  an  "  absence"  as  would  suspend  the  operation  of  the  statute,  this 
clause  of  the  section  is  merged  in  the  one  that  applies  to  non-residents, 
and  could  have  been  omitted  from  the  statute  without  changing  its 
meaning. 

In  an  earlier  case,  it  was  held  by  the  supreme  court  that  absence 

(h)  R.  S.  1881,  §  297.  ( j)   R.  S.  1881,  §  315;  Ewing  v.  Ew- 

(i)  Niblack  v.  Goodman,  67  Ind.  ing,  24  Ind.  468;  Dunkle  v.  Elston,  71 
174,  197.  Ind.  585. 


J  90  LIMITATIONS   OF  ACTIONS.  [CHAP. 

from  the  state  as  a  volunteer  soldier  was  an  "  absence  on  public  busi- 
ness," within  the  meaning  of  the  statute. k  But  this  is  clearly  not  the 
case,  if  the  construction  given  the  statute  in  the  later  case  is  right,  as 
a  volunteer  soldier  would  not  lose  his  residence,  and  could  be  served  by 
copy  so  as  to  "  authorize  the  rendition  of  a  personal  judgment  against 
him." 

Ray,  J.,  in  the  case  of  Gregg  v.  Matlock,  dissented  from  the  opinion 
of  the  majority  of  the  judges  on  this  ground,  saying:  "  Statutes  of 
limitation  are  for  the  repose  of  debtors.  It  has  been  held  that  a  vol- 
unteer soldier  or  officer  in  the  army  of  the  United  States  does  not  lose 
his  residence;  he  may  be  sued,  and  service  may  be  had  upon  him  by 
copy  left  at  his  place  of  residence.  If  thus  exposed  to  litigation  while 
absent,  and  yet  excluded  from  the  benefit  of  the  statute,  his  absence 
on  public  business  simply  imposes  upon  him  a  burden,  from  which 
those  who  avoid  such  service  are  exempt." 

This  language  of  Ray,  J.,  is  quoted  in  the  case  of  Niblack  v.  Good- 
man, but  no  comment  is  made  upon  it,  and  we  have  no  means  of  deter- 
mining whether  the  position  taken  in  the  dissenting  opinion  is  approved 
or  not,  but  may  infer  that  it  is  approved,  as  it  is  in  harmony  with  the 
construction  given  the  statute.  If  so,  the  court  should  have  overruled 
the  former  case. 

278.  Limitations  of  another  state  can  not  be  set  up  in  an 
action  respecting  real  estate. — Prior  to  the  amendment  of  section 
43,  it  applied  to  all  classes  of  actions,  whether  local  or  transitory,  and 
the  limitation  of  another  state,  where  the  defendant  was  a  non-resident, 
might  be  pleaded  in  an  action  relating  to  real  estate,  as  well  as  in  per- 
sonal actions,  if  the  statute  were  given  a  literal  construction.     But  the 
supreme  court  held  in  an  early  case  that  the  statute  did  not  apply  to 
such  actions.1 

As  the  statute  is  now,  the  question  is  of  less  importance,  as  a  case  of* 
this  kind  is  not  likely  to  arise  out  of  the  state. 

279.  Case  of  Smith  v.  Wiley,  21  Ind.  224,  criticised. — In  the 
case  of  Smith  v.  Wiley,  21  Ind.  224,  it  was  held  that  under  section 
216  (297  new  code)  the  statute  would  not  run   during  the  absence  of 
the  plaintiffs  from  the  state.     The  section  relates  exclusively  to  the  ab- 
sence of  the  defendant,  and  the  reason  for  applying  it  to  the  plaintiff 
in  violation  of  its  express  terms  is  not  obvious.     The  court  below  held 
the  other  way,  and  the  supreme  court  say:  "  The  decision  was  clearly 

(k)  Gregg  v.  Matlock,  31  Ind.  373.  (1)  Lagon  v.  Neilson,  10  Ind.  183; 

Iglehart's  PI.  and  Pr.  86,  §  183. 


X.]  LIMITATIONS   OF  ACTIONS.  191 

wrong,  as  the  statute  expressly  excepts  non-residents  from  its  operation. 
The  complaint  shows  the  plaintiffs  were  non-residents." 

If  this  were  the  correct  rule,  a  defendant  could  not  avail  himself  of 
the  statute,  so  long  as  the  plaintiff  is  a  non-resident,  although  he  re- 
sides within  the  state,  and  could  be  sued  at  any  time.  The  fact  that 
the  plaintiff  is  a  non-resident  would  not  prevent  his  bringing  his  suit, 
and  the  rule  that  the  statute  does  not  run  during  his  non-residence  is 
\vithout  any  reason  to  support  it.  The  case  has  never  been  overruled, 
and  it  seems  the  question  has  not  since  been  presented  to  the  supreme 
court. 

280.  Effect  of  death  of  one  of  the  parties  before  the  stat- 
ute has  run  its  full  time. — "  If  any  person  entitled  to  bring  or  lia- 
ble to  any  action  shall  die  before  the  expiration  of  the  time  limited 
for  the  action,  the  cause  of  action  shall  survive  to  or  against  his  repre- 
sentatives, and  may  be  brought  at  any  time  after  the  expiration  of  the 
time  limited,  within  eighteen  months  after  the  death  of  such  person.""1 

This  section,  like  section  296,  applies  to  both  parties,  and  its  effect 
is  very  much  the  same.  If  the  party  dies  as  much  as  eighteen  months 
before  the  statute  runs  its  full  time,  this  section  has  no  effect,  but 
if  the  death  occurs  less  than  eighteen  months  before  the  statute  has 
run  its  full  time,  the  representatives  may  sue  at  any  time  within 
eighteen  months  from  the  death,  notwithstanding  the  limitation  expires 
before  that  time. 

The  section  has  received  a  construction  at  the  hands  of  the  supreme 
court  in  a  late  case,  in  which  the  court  say  :  "It  was  not  the  legislative 
intention  in  this  section,  as  we  construe  its  provisions,  to  abbreviate  in 
any  instance  the  period  of  time  within  which  an  action  might  be  com- 
menced under  the  provisions  of  the  statute  of  limitations.  But  it  was 
the  object  and  purpose  of  the  section,  we  think,  in  all  cases  where 
death  intervenes  within  eighteen  months  of  and  preceding  the  close  of 
the  ordinary  period  of  limitation,  to  allow  suits  to  be  brought  either 
by  or  against  the  personal  representatives  of  such  decedent  within 
said  period  of  eighteen  months  upon  causes  of  action  which,  without 
that  section,  would  have  been  barred  by  limitation  during  that  period, 
and  before  suit  was  brought.  Thus,  it  seems  to  us,  that,  under  this 
section,  while  the  ordinary  period  of  limitation  may  possibly  be  en- 
larged, yet  it  can  never  be  diminished  or  abbreviated  in  any  case."  n 

(m)  K.  S.  1881,  §  298.  v.  Grubb,  26  Ind.  419;  Sanders  v.  San- 

(n)  Harris    v.   Kice,    66    Ind.   267;     ders,  48  Ind.  84;  Vol.  3,  p.  382. 
Hiatt  v.  Hough,  11  Ind.  101 ;  Bauman 


192  LIMITATIONS    OF  ACTIONS.  [CHAP. 

281.  Where  plaintiff  has   once    brought   his    action    and 
failed,  time   extended  in  certain  cases. — "  If,  after  the  com- 
mencement of  an  action,  the  plaintiff  fail  therein,  from  any  cause  ex- 
cept negligence  in  the  prosecution,  or  the  action  abate,  or  be  defeated  by 
the  death  of  a  party,  or  judgment  be  arrested  or  reversed  on  appeal,  a 
new  action  may  be  brought  within  five  years  after  such  determination, 
and  be  deemed  a  continuation  of  the  first,  for  the  purposes  herein  con- 
templated." ° 

This  section  applies  to  four  classes  of  cases : 

1.  Where  the  plaintiff  fails,  without  negligence,  in  the  prosecution. 

2.  Where  the  action  abates,  or  is  defeated,  by  the  death  of  a  party. 

3.  Where  judgment  is  arrested. 

4.  Where  the  judgment  is  reversed  on  appeal. 

The  first  is  very  indefinite,  leaving  the  courts  to  determine,  in  each 
particular  case,  what  is  such  negligence  in  the  prosecution  as  would 
deprive  the  party  of  the  benefit  of  the  exception.  It  has  been  held, 
under  this  clause  of  the  section,  that  where  the  plaintiff  has,  by  mis- 
take, commenced  his  action  in  an  erroneous  form,  so  that  it  can  not 
be  maintained,  it  is  not  negligence  in  the  prosecution,  and  will  save 
his  right  to  sue  the  second  time  within  the  five  years. p 

But  it  must  appear  that  the  second  cause  of  action  js  a  continuation 
of  the  first,  or  rather  that  the  two  causes  of  action  are  the  same  ancj 
between  the  same  parties;*1  and  where  the  plaintiff  voluntarilv  aban- 
dons the  action  he  can  not,  by  reason  of  its  having  been  commenced, 
avail  himself  of  the  exception/ 

282.  Where  the  action  abates  or  is  defeated  by  the  death 
of  one  of  the  paries. — Under  this  clause  of  the  statute  no  ques- 
tion is  likely  to  arise.     If  one  of  the  parties  dies  during  the  pen- 
dency of  the  action,  and  the  cause  is  not  such  that  his  death  would 
terminate  the  cause  of  action,  the  exception  would  apply.     In  most 
cases,  the  proper  practice  is  to  substitute  the  representative  of  the  de- 
ceased party,  in  which  case  the  action  must  be  regarded  as  the  same, 
and  the  statute  of  limitations  would  not  affect  the  remedy.     If  the 
action  is  for  a  tort,  and  does  not  survive  under  the  statute,  no  new 
action  can  be  commenced,  and  no  question  could  arise  under  this  sec- 
tion.s 

(o)  K.  S.  1881,  §  299.  (q)  Sidener  v.  Galbraith,  63  Ind.  £P 

(p)  Flournoy  »?.  The  City  of  Jeffer-     Xiblack    v.   Goodman,    67   Ind.    174-, 
sonville,  17   Ind.   169;    McKinney   v.     Hawthorn  v.  The  State,  57  Ind.  286. 
Springer,  3  Ind.  59;  Sumner  v.  Cole-         (r)  Null  v.  The  White  Water  Yal- 
man,  20  Ind.  486.  ley  Canal  Co.,  4  Ind.  431. 

(s)  Iglehart's  PI.  and  Pr.  87,  §  25. 


X.]  LIMITATIONS  OF  ACTIONS.  193 

283.  "Where  the  judgment  is  arrested,  or  reversed  on  ap- 
peal.— There  is  a  marked  difference  between  the  reversal  and  arrest 
of  a  judgment.     The  reversal  of  a  judgment  is,  in  effect,  the  same  as 
granting  a  new  trial.     The  action  is  not  terminated,  and,  therefore, 
the  plaintiff  could  not  be  barred  by  the  statute,  independent  of  this 
section,  if  his  action  was  commenced  in  time  originally.     It  is  other- 
wise in  case  of  the  arrest  of  a  judgment.     It  has  the  effect  to  terminate 
the  action  at  once,  and  the  party  has  no  remedy  but  to  commence  a 
new  action.* 

The  plaintiff,  by  virtue  of  this  section  of  the  statute,  may  commence 
his  action  a  second  time  any  time  within  five  years.  The  section 
must  not,  however,  be  understood  as  limiting  his  right  to  sue  the 
second  time  to  five  years,  where  the  statute  would  not  run  its  full  time 
at  the  end  of  the  five  years  if  no  suit  had  been  commenced.  The 
object  of  the  section  is  to  enlarge  and  not  to  diminish  the  time  allowed 
under  the  statute.  If,  therefore,  the  statute  has  ten  years  yet  to  run 
when  the  judgment  is  arrested,  the  party  has  the  full  ten  years  in 
which  to  sue  the  second  time ;  but  if  the  statute  has  less  than  five 
years  to  run,  or  has  run  its  full  time  during  the  pendency  of  the  first 
action,  this  section  allows  him  the  full  five  years  in  which  to  sue. 

CONCEALMENT. 

284.  Statute  does  not  run  where  the  defendant  conceals 
the  cause  of  action. — "  If  any  person  liable  to  an  action  shall  con- 
ceal the  fact  from  the  knowledge  of  the  person  entitled  thereto,  the 
action  may  be  commenced  at  any  time  within  the  period  of  limitation 
after  the  discovery  of  the  cause  of  action. "u 

The  effect  of  this  section  is,  that  where  the  cause  of  action  is  con- 
cealed the  statute  does  not  commence  to  run  until  discovery.  It  was 
formerly  the  rule  in  equity  that  in  actions  growing  out  of  fraud  the 
statute  did  not  commence  to  run  until  the  cause  of  action  was  discov- 
ered, without  reference  to  the  question- whether  the  party  liable  had 
concealed  the  cause  of  action  or  not.v 

This  section  of  our  statute  changes  this  rule.  Actions  for  fraud 
stand  upon  the  same  footing  with  other  causes  of  action,  and  the  stat- 
ute commences  to  run,  in  that  class  of  cases  as  in  all  others,  when  th«- 

(t)  Raber  v.  Jones,  40  Ind.  436;  (v)  Ang.  on  Lim.,  §  30;  Raymond 
Crawford  r.  Crockett,  55  Ind.  220.  v.  Simoridson,  4  Blkf.  77;  Story's  Eq 

(u)  R.  S.  1881,  §  300.  Jur.,  §§  1521,  1521a. 

13 


194  LIMITATIONS   OF  ACTIONS.  [CHAP. 

cause  of  action  accrues,  unless  it  is  concealed.  Some  of  the  decided 
cases  are  not  in  harmony  with  the  rule  as  just  stated.  Notwithstand- 
ing this  section,  it  has  been  held  that  in  cases  of  fraud  the  statute  did 
not  commence  to  run  until  the  fraud  was  discovered,  without  any  refer- 
ence to  the  question  of  concealment. w  But  later  decisions  are  clearly 
to  the  effect  that  the  statute  commences  to  run  before  discovery  unless 
the  cause  of  action  is  concealed.1 

285.  "What  amounts  to  concealment  within  the  meaning 
of  the  statute. — The  concealment  must  be  something  independent 
of  the  fraud  constituting  the  cause  of  action ;  must  consist  of  some 
positive  act  on  the  part  of  the  party  liable,  and  must  have  the  effect  to 
conceal.  It  is  not  enough  that  the  party  remains  silent,  and  his  ad- 
versary fails  to  discover  the  cause  of  action.  Nor  is  it  sufficient  that 
the  party  liable  attempts  by  positive  acts  to  conceal  the  cause  of  action. 
If  the  plaintiff  has  in  fact  discovered  the  cause  of  action,  he  can  not 
avail  himself  of  the  exception  by  showing  that  the  opposite  party  at- 
tempted concealment.  There  must  be  an  actual  concealment  by  the 
party  liable  to  the  action,  and  it  must  be  subsequent  to  the  time  when 
the  cause  of  action  accrued,  or,  if  prior,  must  be  intended  to  prevent 
future  discovery. y 

There  is  a  late  case  that  does  not  seem  to  be  in  harmony  with  these 
decisions.  The  facts  of  the  case  are  thus  briefly  stated  in  the  opinion : 
"  On  the  14th  day  of  June,  1867,  the  defendant  gave  the  plaintiff,  in 
payment  of  a  debt,  a  note  on  third  persons,  without  indorsement,  pur- 
porting to  be  due  on  the  25th  day  of  April,  1868.  Said  note  was 
signed  by  three  persons,  two  of  whom  were  sureties.  The  defendant, 
with  the  principal  in  the  note,  before  it  was  transferred  to  the  plaintiff, 
had  altered  the  same,  so  as  to  make  it  fall  due  on  said  25th  day  of 
April,  1868,  instead  of  the  1st  day  of  January,  1868.  It  not  being 
paid  on  the  25th  day  of  April,  the  time  it  purported,  upon  its  face,  to 
become  payable,  the  plaintiff  sued  all  the  parties,  and  the  sureties  set- 
ting up  the  alteration,  defeated  the  suit  as  to  them,  and  the  principal 
was  insolvent.  .  .  .  This  suit  was  instituted  to  recover  the  plaint- 

(w)  Matlock  v.  Todd,  25  Ind.  128;  (y)  Boyd  v.  Boyd,  27  Ind.  429; 

Gray  v.  Stiver,  24  Ind.  174.  Stanley  v.  Stanton,  36  Ind.  445;  Earn- 

(x)  Pilcher  v.  Flinn,  30  Ind.  202;  hart  v.  Robertson,  10  Ind.  8;  Jones  v. 

Putter  v.  Smith,  36  Ind.  231 ;  Wallace  The  State,  14  Ind.  120;  Randolph  v. 

,:  Metzker,  41  Ind  346;  Boyd  v.  Boyd,  The  State,  14  Ind.  232;  Free  v.  The 

27  Ind.  429;  Wynne  ».  Cornelison.  52  State,  13  Ind.  324;  Wynne  r.  Corneli- 

Ind.  312;  Ware  v.  The  State,  74  Ind.  son,  52  Ind.  312  ;  Jackson  v.  Buchanan, 

181.  59  Ind.  390;  Robinson  v.  The  State,  57 

Illd:  113. 


X.]  LIMITATIONS    OF  ACTIONS.  195 

iff's  claim,  as  we  have  said,  on  the  27th  day  of  June,  1873.  The  com- 
plaint recites  the  facts  of  the  case,  which  showed  a  good  cause  of  action 
on  the  original  debt  or  for  fraud.  The  defendant  answered  the  statute 
of  limitations  of  six  years.  The  plaintiff  replied  that  he  had  no  notice 
of  the  alteration  of  the  note  uutil  after  the  25th  day  of  April,  1868, 
and  that  this  suit  was  brought  within  six  years  from  that  date."  There 
was  a  demurrer  to  this  reply  sustained  in  the  court  below. 

The  supreme  court,  in  passing  upon  this  ruling,  say:  "The  caus  • 
of  action  in  this  case,  whether  it  be  the  original  debt  or  the  fraud,  did 
not  arise  till  the  plaintiff  discovered  the  fraud  practiced  upon  him  in 
giving  him  in  payment  of  a  debt  the  altered  note  in  question.  The 
original  debt,  by  the  taking  of  the  note,  was  postponed  as  to  the  time 
of  its  becoming  due,  and  became  due  when  it  was  discovered  by  the 
plaintiff  that  the  pretended  payment  was  fraudulently  made  in  an 
article  that  was  worthless."2 

No  authority  is  cited  to  support  the  rule  here  laid  down,  and  it  is 
clearly  in  conflict  with  many  well  considered  cases  already  cited,  hold- 
ing that  it  is  not  enough  that  the  fraud  was  not  discovered,  but  there 
must  be  some  positive  act  of  concealment  that  prevents  such  discovery. 
None  of  these  cases  are  referred  to.  It  could  not  be  maintained  that 
the  fraud  in  the  transfer  of  the  note  was  a  concealment  of  the  original 
cause  of  action  for  the  debt.  On  the  contrary,  it  was  an  admission  that 
there  was  an  indebtedness.  Nor  can  it  be  said  with  any  greater  degree 
of  reason  that  it  postponed  the  time  when  the  original  indebtedness  ma- 
tured by  the  transfer  of  a  note  that  was  worthless.  If  the  note  was 
worthless,  it  could  no  more  have  the  effect  to  postpone  the  debt  than  to 
satisfy  or  pay  it.  The  fraud  would  no  doubt  create  a  new  cause  of 
action,  but  the  authorities  are  clear  that  the  statute  commences  to  run 
in  actions  for  fraud  from  the  time  the  fraud  is  perpetrated,  unless  the 
cause  of  action  is  concealed.  The  reply  in  this  case  did  not  allege  that 
there  was  any  concealment  of  either  of  the  causes  of  action.  The  case 
must  stand  as  one  holding  that  the  cause  of  action  does  not  commence 
to  run  until  the  fraud  is  discovered.  The  case  was  evidently  not  well 
considered,  and  as  it  does  not  expressly  overrule  the  long  line  of  de- 
cisions in  conflict  with  the  language  used  by  the  court,  it  should  have 
but  little  Aveight. 

The  supreme  court  evidently  did  not  regard  it  as  changing  the  rule 
established  in  the  early  cases,  as  the  old  rule  is  clearly  stated  in  a 
late  case,  in  which  the  court  say:  "  TJie  concealment  of  the  fad  that  a 
person  is  liable  to  an  action  to  prevent  the  running  of  the  statute  of  limita- 
tions under  section  219,  must  be  of  a  positive  and  affirmative  cJiarader,  cal- 

(z)  Bescher  v.  Paulus.  58  Ind.  271. 


196  LIMITATIONS   OF  ACTIONS.  [CHAP. 

citlated  to  prevent  the  discovery  of  the  liability,  as  by  hiding  the  fact  or 
avoiding  inquiry  concerning  its  existence.  And  inhere  the  party  knows  the 
fact,  or  is  in  possession  of  the  means  of  detecting  it,  and  neglects  to  bring 
his  action  ivithin  the  time  limited  by  the  statute,  he  will  be  deprived  of  his 
remedy." a  , 

The  action  was  for  criminal  conversation,  and  it  was  alleged  that  the 
defendant  concealed  the  cause  of  action,  by  persuading  the  plaintiff's 
wife  to  deny  the  commission  of  the  offense.  It  was  held  that  this  wa.s 
not  a  concealment  of  the  cause  of  action  within  the  meaning  of  the 
statute. 

NEW   PROMISE. — ACKNOWLEDGMENT. 

286.  Cause  taken  out  of  statute  by  acknowledgment  or 
promise  in  writing. — "  No  acknowledgment  or  promise  shall  be  evi- 
dence of  a  new  or  continuing  contract,  whereby  to  take  the  case  out  of 
the  operation  of  the  provisions  of  this  act,  unless  the  same  be  contained 
in  some  writing,  signed  by  the  party  to  be  charged  thereby."1* 

This  section  of  the  statute  is  negative  in  its  character,  the  law  being, 
prior  to  its  enactment,  that  a  new  acknowledgment  or  promise  would 
take  the  case  out  of  the  statute,  whether  it  was  in  writing  or  not,  and 
this  is  still  the  law  in  most  of  the  states.  Under  this  section  the  new 
promise  must  be  in  writing,  and  signed  by  the  party  to  be  charged.0 

287.  This  exception  applies  only  to  actions  on  contract. — 
By  an  early  statute  it  was  provided  that  no  statute  of  limitations  should 
ever  be  pleaded  as  a  bar,  or  operate  as  such,  to  any  action  founded  on 
an  instrument  or  contract  in  writing,  whether  the  same  be  sealed  or 
unsealed,  nor  to  running  accounts  between  merchant  and  merchant. d 
The  result  of  this  statute  was  that  no  contract  in  writing  could  be 
barred  by  the  statute  of  limitations,  and  if  the  original  contract  were 
not  in  writing,  and  a  new  promise  in  writing  was  made,  such  new 
promise  constituted  a  new  contract,  and  being  in  writing  could  not  be 
barred.6 

It  has  been  shown  that  our  present  statute  is  general  in  its  terms, 
and  applies  to  all  classes  of  actions.  The  language  of  this  section, 
however,  is  such  that  it  may  very  properly  be  limited  to  actions  grow- 

(a)  Jackson   v.    Buchanan,  59   Ind.  (d)  Rev.  Laws.  1831,  p.  401,  §  12. 
390.  (e)  Raymond  v.  Simondson,  4  Blkf. 

(b)  R.  S.  1881,  §  301.  77,  85;  Neighbors  v.  Simmons,  2  Blkf. 

(c)  Ketcham  v.  Hill,  42  Ind.  64,  81;  75;  Hoyt  r.  Reed,  3  Blkf.  368;  Spang- 
Kisler   v.  Sanders,   40    Ind.  78;    Van  ler  v.  McDaniel,  3  Ind.  275. 

Dorn  v.  Bodley,  38  Ind.  402;  Neigh- 
bors v.  Simmons,  2  Blkf.  75. 


X.]  LIMITATIONS   OF  ACTIONS.  197 

ing  out  of  contract.  The  language  is  that  "  no  acknowledgment  or 
promise  shall  be  evidence  of  a  new  or  continuing  contract."  If  the  stat- 
ute is  limited  to  actions  on  contract,  the  new  promise  should  be  re- 
garded as  a  continuation  of  the  old  contract,  and  the  action  should  be 
on  the  original  promise.  But  if  the  original  cause  of  action  were  for 
a  tort,  the  new  promise  could  in  no  sense  be  considered  as  a  continuing 
contract,  and  the  action  might  be  maintained  on  the  new  promise,  in 
which  case  the  statute  pf  limitations  that  would  bar  the  original  cause 
of  action  could  not  be  pleaded.  The  word  "  acknowledgment,"  as  used 
by  the  statute,  is  as  applicable  to  actions  for  torts,  or  upon  any  other 
cause  of  action,  as  to  those  upon  contract,  and  as  the  statute  itself  is 
applicable  to  all  kirids  of  actions  I  see  no  reason  why  this  section 
should  not  be  construed  so  as  to  apply  to  all  causes  of  action  included 
in  the  statute  of  which  it  is  a  part.  But  it  has  been  held  by  the  su- 
preme court  that  the  section  applies  only  to  actions  originally  arising 
upon  promises  or  contracts/ 

In  the  case  of  Cunningham  v.  McKindley  the  court  say:  "This 
section,  it  will  be  perceived,  relates  only  to  causes  of  action  originally 
arising  upon  promises  or  contracts,  and  does  not,  as  we  think,  relate  to 
continuing  trusts,  especially  those  arising  by  operation  of  law." 

If  this  case  stood  alone  it  would  be  entitled  to  but  very  little  weight. 
It  was  decided  in  the  case  holding  that  no  part  of  the  statute  of  lim- 
itations applied  to  "  continuing  trusts,"  but  upon  that  point,  as  I  have 
shown,  it  has  been  overruled.  There  is,  however,  a  later  case  in  which 
the  question  was  thoroughly  considered,  and  the  same  limited  meaning 
given  to  the  section.  In  Niblack  v.  Goodman  the  court  say:  "It  will 
be  observed  that  the  provisions  of  this  section  are  wholly  negative  in 
their  character.  It  defines  what  shall  not  be  evidence  of  a  new  or  con- 
tinuing contract,  but  it  does  not  declare  in  terms  what  shall  be  evidence 
of  such  contract.  It  seems  to  us,  however,  that  by  implication,  and  per- 
haps by  fair  construction,  this  section  provides  that  an  acknowledg- 
ment or  promise  contained  in  some  writing  signed  by  the  party  to  be 
charged  thereby  shall  be  evidence  of  a  new  or  continuing  contract,  by 
which  a  case  upon  contract  may  be  taken  without  the  operation  of  the 
statute  of  limitations.  We  say  a  case  upon  contract,  because  the 
words  new  or  continuing  contract,  as  used  in  this  section,  necessarily 
imply  the  existence  of  an  old  or  prior  contract,  upon  which  the  '  case'  is 
founded,  which  old  contract  has  been  renewed  or  continued  by  an  ac- 
knowledgment or  promise  contained  in  some  writing  signed  by  the 
party  to  be  charged  thereby.  The  question  presented  for  our  decision 

(f)  Cunningham  v.  McKindley,  22  Ind.  149;  Niblack  v.  Goodman,  67  Ind. 
174,  180. 


198  LIMITATIONS    OF  ACTIONS.  [CHAP. 

by  the  alleged  error  of  the  court  below  in  overruling  the  appellant's 
demurrer  to  the  second  paragraph  of  the  appellee's  reply,  is  this :  L  a 
judgment  a  contract,  or  in,  the  nature  of  a  contract  in  such  manner  and  to 
such  an  extent  that  an  acknowledgment  or  promise  properly  made  in  relation 
thereto  will  be  evidence  of  a  neiv  or  continuing  contract,  by  which  a  ca*e 
founded  on  such  judgment  ivill  be  taken  out  of  the  operation  of  the  statute 
of  limitations  f  It  seems  to  us  that  this  question  nust  be  answered  in 
the  negative."  This  case  is  directly  in  point,  and  must  be  decisive 
of  the  question. 

288.  What  is  a  sufficient  new  promise. — Having  shown  that 
the  new  promise  or  acknowledgment  must  be  in  writing,  it  is  impor- 
tant, also,  to  determine  what  the  writing  must  contain.     No  particular 
form  is  necessary,  but  by  the  express  terms  of  the  statute  it  must  be 
either  an  acknowledgment  of  the  old  cause  of  action  or  a  promise  to 
pay  the  debt ;  whether  it  is  au  acknowledgment  or  a  promise,  it  must 
amount  to  an  admission  of  a  subsisting  cause  of  action,  because  it  is 
the  existence  of  the  old  cause  of  action  that  upholds  the  new.g 

289.  Effect  of  acknowledgment  or  promise  by  one  joint 
contractor. — The  question  whether  a  promise  or  acknowledgment  by 
one  joint  contractor  will  avoid  the  operation  of  the  statute  as  to  his 
co-contractors  has  been  answered  both  ways  in  the  adjudicated  cases, 
some  holding  that  the  promise  of  one  affected  all  alike  ;  others  holding 
that  his  promise  only  affected  his  own  liability,  and  that  in  such  case 
judgment  might  be  taken  against  him  alone.    In  this  state,  the  statute 
expressly  provides  that  "  the  acknowledgment  or  promise  of  one  joint 
contractor,  executor,  or  administrator  shall  not  render  any  other  joint 
contractor,  executor,  or  administrator  liable  under  the  provisions  of  this 
act."h     And  the  plaintiff  may  take  judgment  against  the  joint  con- 
tractor who  makes  the  new  promise,  although  the  action  as  to  the  other 
contractors  is  barred.' 

290.  A  joint  contractor  once  released  can   not  be  made 
liable  to  his  co-contractor,  who  has  been  compelled  to  pay 
the  debt. — The  statute  expressly  provides  that  "  neither  a  joint  debtor 
or  his  representative,  in  whose  favor  the  statute  of  limitations  has  op- 
erated, shall  be  liable  to  a  joint  debtor  or  surety,  or  their  representa- 

(g)  Goldsby  v.  Gentle,  5  Blkf.  436;  v.  Bodley,  38  Ind.  402;   Ang.  on  Lim.. 

Spangler  v.   McDaniel,   3    Ind.   275;  §  270  et  seq. 

Conwell  v.  Buchanan,  7  Blkf.  537;  El-  (h)  R.  S.  1881,  §  302. 

liott  v.  Mills,  10  Ind.  368;  Van  Dorn  (i)  R.  S.  1881,  §  567. 


X.]  LIMITATIONS   OF  ACTIONS.  199 

fives,  upon  payment  by  such  joint  debtor  or  surety,  or  their  representa- 
tives, of  the  debt  or  any  part  of  it."j 

PART   PAYMENT. 

291.  Effect  of  part  payment. — "  Nothing  contained  in  the  pre- 
ceding sections  shall  take  away  or  lessen  the  effect  of  any  payment 
made  by  any  person  ;  but  no  indorsement  .or  memorandum  of  any  pay- 
ment made  upon  any  instrument  of  writing,  by  or  on  behalf  of  the 
party  to  whom  the  payment  shall  purport  to  be  made,  shall  be  deemed 
sufficient  to  exempt  the  case  from  the  provisions  of  this  act."  k 

This  section  does  not  change  the  effect  of  part  payment,  as  the  law 
was  before  its  enactment ;  the  only  effect  of  this  statutory  provision 
being  that  no  indorsement  made  on  the  Avriting  by  the  person  to  whom 
the  payment  purports  to  be  made  shall  be  deemed  sufficient  evidence 
of  such  payment.1 

292.  What  is  part  payment  within  the  meaning  of  the 
statute. — Effect  is  given  to  part  payment  on  the  ground  that  it  con- 
stitutes an  acknowledgment  of  an  indebtedness.     It  must,  therefore, 
be  a  payment  of  less  than  is  due,  and  made  as  such  by  the  party  mak- 
ing the  payment.     It  must  also  be  made  on  account  of  the  debt  for 
which  the  action  is  commenced."1 

And  if  payment  is  made  with  a  denial  of  further  indebtedness,  it 
will  not  take  the  case  out  of  the  statute.11  The  payment  may  be  made 
either  on  the  principal  or  interest.0 

It  is  not  necessary  that  the  payment  should  be  in  money.  It  may 
be  in  property  or  by  a  negotiable  note.p 

293.  By  and  to  whom  payment  must  be  made. — The  part 
payment,  to  be  effective  against  the  statute  of  limitations,  must  be 
made  by  the  party  liable  for  the  original  indebtedness,  and   to  the 
party  to  whom  the  debt  is  due,  or  some  one  authorized  by  him  to  ac- 
cept payment.*1 

(j)  R.  S.  1881,  §  306.  (o)  Conwell   v.   Buchanan,   7   Blkf. 

(k)  R.  S.  1881,  §  303.  537;   Ang.  on  Lira.,  §240;  3  Parsons 

(1)  Ketcham  v.  Hill,  42  Ind.  64,  81  ;  on  Con.  77. 

Kisler  v.  Sanders.  40  Ind.  78.  (p)  Ang.  on  Lim.,  §g  240,  247 ;  3  Par- 

(m)  Prenatt    v.    Kunyon,    12    Ind.  sons  on  Con.  74. 

174;    Kisler   v.  Sanders,   40   Ind.  78;  (q)  Kisler  v.  Sanders,  40  Ind.  78,  83; 

Carlisle  v.  Morris,  8  Ind.  421;  Ketcham  Sibert  v.  Wilder,  22  Am.  Rep.  28  (16 

v.  Hill" 42  Ind.  64;  Elliott  v.  Mills,  10  Kan.   176);    Kirby   v.   Mills,  24   Am. 

Ind.  368;  Conkey  v.  Harbour,  22  Ind.  Rep.460  (78  N.C.  124) ;  Ang.  on  Lim., 

196.  §  1246. 

(n)  3  Parsons  on  Con.  76. 


200  LIMITATIONS    OF  ACTIONS.  [CHAP 

294.  Will  a  new  promise,  acknowledgment,  or  part  pay- 
ment by -an  executor  or  administrator  avoid  the  operation 
of  the  statute  ? — A  doubt  has  been  expressed  by  the  supreme  court 
whether  a  new  promise  or  part  payment  by  an  executor  or  administra- 
tor could  have  the  effect  to  avoid  the  statute/  and  the  authorities  on 
the  point  are  not  uniform.  The  question  seems  not  to  have  been  de- 
cided in  this  state.  The  statute  expressly  provides  that  no  acknowl- 
edgment or  promise  of  one  joint  executor  or  administrator  shall  render 
the  other  liable,  but  this  evidently  refers  to  their  personal  liability  as 
such  executors  or  administrators,  and  not  the  liability  of  the  estate. 
In  the  case  of  Riser  v.  Snoddy  the  court  say:  "It  is  also  doubtful 
whether  the  executor  or  administrator  of  an  estate  can  by  promise  take 
a  debt  out  of  the  statute,  and  whether  he  is  not  bound  to  plead  the 
statute  of  limitations  in  all  cases." s 

In  the  case  of  Briggs  v.  Starke,  12  Am.  Dec.  659,  it  is  held  that  a 
new  promise  by  one  of  several  joint  executors  takes  the  case  out  of 
the  statute.  In  a  note  to  this  decision,  the  learned  editor  has  laid 
down  the  rules  as  decided  by  the  courts  of  different  states,  and  as  the 
authorities  upon  the  point  are  cited,  and  the  reasons  upon  which  they 
are  based  are  fully  and  clearly  stated,  I  take  the  liberty  of  inserting  it 
here  in  full : 

"Executors'  power  to  revive  debt. — Upon  the  power  of  an  executor  or 
an  administrator  to  revive  a  debt  due  from  the  decedent,  which  was 
barred  by  the  statute  of  limitations  in  his  lifetime,  the  decisions  are  not 
uniform.  The  states  wherein  the  courts  have  maintained  that  the 
power  so  to  revive  a  debt  does  exist  are  Massachusetts,'  Kentucky," 
New  Jersey, v  North  Carolina, w  and  it  seems  in  New  Hampshire. x  On 
the  other  hand,  states  'whose  courts  have  denied  to  executors  and  ad- 

(r)  Riser  v.  Snoddy,  1  Ind.  442;  Jen-  Mass.  201;  Manson  r.  Felton,  13  Pick, 

nings  v.  Kee,  5  Ind.  257.  206;  Lamson  v.  Schutt,  4  Allen.  360; 

(s)  Citing   Thompson    v.   Peter,    12  Foster  v.  Starkie,  12  Cush.  324 ;  Fisher 

"Wheat.  565;  Peck  v.  Botsford,  7  Conn.  v.  Metcalf,  7  Allen,  209. 

172;    Ang.  on   Lim.,  §  348  et  seq. ;    2  (u)  Citing  Hord  v.  Lee,  4  Mon.  36; 

Kent's   Com.   455  et  seq.,  and   notes.  Northcuta.  Wilkinson,  12  B.  Mon.  408. 

But  see  Shreve  v.  Joyse,  13  Am.  Rep.  (v)  Citing   Shreve  v.  Joyce,  36   N. 

417;   s.   c.,   37   N.   J.   44;    Cobham  v.  J.  44. 

Adm'rs,  2  Am.  Dec.  612;  s.  c.,  2  Hay-  (w)  Citing  Cobham  c.  Adm'r,  2  Am. 

wood,  6;  Peck  v.  Botsford,  18  Am.  Dec.  Dec.  612. 

'.»:>  (7  Conn.  172);  Briggs  v.  Starke,  12  (x)  Citing  Busvvell  v.  Roby,    3    N. 

Am.  Dec.  659  (2  Mill.  111).  II.  458;  Hodgson  v.  White,  11  Id.  211 ; 

(t)  Citing   Brown   v.  Anderson,   13  Brewster  v.  Brevvster,  52  Id.  52. 


X.]  LIMITATIONS   OF  ACTIONS.  201 

ministrators  this  power  are  Connecticut/  Kansas,2  Louisiana,8  Missis- 
sippi,13 Missouri,0  Ohio,d  Pennsylvania,0  Texas/  Virginia,8  and  it  seems 
New  York.h 

"  In  other  of  the  states  the  question  has  not  been  judicially  deter- 
mined, the  courts  merely  asserting  what  must  be  the  nature  of  the 
promise  in  order  to  revive  the  debt.  Such  is  the  case  with  Maine  '  and 
South  Carolina.J  although  in  Reigne  v.  Desportes,  1  Dudley,  118,  121, 
it  is  said  that  if  the  statute  had  barred  the  debt  in  the  testator's  life- 
time, the  new  promise  of  the  executor  made  as  such  would  not  be 
binding. 

"The  prevailing  doctrine,  it  is  seen,  is  that  an  executor  or  adminis- 
trator can  not  even  by  an  express  promise  to  pay  revive  a  debt  which 
had  been  barred  by  the  statute  of  limitations  during  the  lifetime  of  the 
decedent.  The  reasons  for  the  rule  are  differently  stated.  Some  of 
the  cases  proceed  upon  the  ground,  as  taken  in  Drouillard  v.  Wil- 
son, 10  W.  L.  J.  385,  where  it  is  said  '  that  the  duties  of  the  adminis- 
trator are  limited  to  collecting  the  debts  due  to  and  to  the  payment  of 
those  owing  by  the  intestate.  What  right  he  has  to  be  generous  with 
the  property  of  others  to  pay  debts  for  which  there  exists  no  legal  lia- 
bility against  the  estate,  I  could  never  comprehend.'  It  is  also  urged 
iu  support  of  the  rule  that  the  statute  extinguishes  the  debt;  that  the 
new  promise  is  a  new  contract  supported  by  the  moral  obligation  aris- 
ing from  the  original  contract ;  that  in  the  case  of  an  executor  there  is 
no  such  moral  obligation,  and,  therefore,  he  can  not  bind  the  estate  by 
a  new  promise.  Still  other  decisions  turn  upon  the  construction  of  the 
local  statutes. 

The  contrary  doctrine  is  based,  by  some  of  the  decisions  which  sup- 
port it,  upon  the  assumption  that  an  executor  or  administrator  repre- 

(y)  Citing  Peck  v.  Botsford,  7  Conn.         (f)  Citing   Moore   v.    Hardison,    10 

172;  Isaacs  v.  Stevens,  13  Id.  50G.  Tex.  467;  Moore  v.  Hillebrant,  14  Id. 

(z)  Citing  Hanson  v.  Towle,  19  Kan.  312. 
273.  (g)  Citing  Fisher  v.  Duncan,  3  Am. 

(a)  Citing  Seveir  v.  Gordon,  21  La.  Dec.  605;  Seig  v.  Acord,  21  Gratt.  365; 
Ann.  373.  371. 

(b)  Citing  Sanders  v.  Robertson,  23         (h)  Citing  Bloodgood  v.  Bruen,  8  N. 
Miss.  389;  Huntington  v.  Bobbitt,  46  Y.  370;  McLaren  r.  Me  Martin,  36  Id. 
Id.  528.  88;   Heath  r.  Grinne;],  61  Barb.  189. 

(c)  Citing    Cape   Girardeau    Co.   v.         (i)  Citing  Oakes  v.  Mitchell,  15  Me. 
Harbison,  58  Mo.  90.  360;   Bunker  v.  Athearn,  35  Id.  364. 

(d)  Citing  Drouillard  v.  Wilson,  10         (j)  Citing   Johnson   v.  Ballard,    11 
W.  L.  J.  385.  Rich.  181 ;    Wilson  v.  Wilson,   1  Mc- 

(e)  Citing  Fritz  v.  Thomas,  1  Whart.  Mullen's  Eq.  331;  Clarke  v.  Jenkins,  3 
66;  Clarke  v.  Maguire,  35  Pa.  St.  259.  Rich.  340. 


202  LIMITATIONS    OF  ACTIONS.  [CHAP. 

sents  the  decedent  to  the  extent  of  the  assets  in  his  hands,  and  that  a 
promise  made  by  him,  in  his  representative  capacity,  to  pay  a  debt 
should  have  the  same  effect  as  if  it  had  been  made  by  the  decedent 
himself. k 

"  The  early  Massachusetts  cases  were  led  to  take  this  view  of  the 
question,  because  they  considered  the  statute  of  limitations  to  be  a 
mere  statute  of  presumption,  and,  therefore,  that  an  acknowledgment, 
by  a  personal  representative,  of  the  justness  of  a  barred  debt,  would 
make  the  debt  a  legal  claim  against  the  estate.1 

"  Subsequent  adjudications,  in  that  state,  upon  this  question,  have  not 
repudiated  the  reasoning  of  the  former  decisions.  But  in  Foster  v. 
Gtarkey,  12  Cush.  324,  still  another  ratio  decidendi  was  adopted,  founded 
upon  the  construction  of  their  local  statutes,  and  in  an  applica- 
tion of  tb>  principles  of  the  general  statute  of  limitations,  as  evidenced 
by  the  practice  in  that. state.  'The  practice  uniformly  is  to  declare 
upon  the  original  cause  of  action,  and  if  the  statute  of  limitations  is 
set  up  as  a  bar,  then  the  plaintiffs  offer  evidence  of  the  payment, 
promise,  or  unequivocal  acknowledgment  of  the  debt,  the  effect  of  which 
is  to  avoid  the  bar,  and  the  recovery  is  had  on  the  original  cause.  Such 
being  the  effect  of  the  payment  or  acknowledgment,  there  seems  no 
reason  why  it  should  not  have  the  same  effect  when  made  by  the  per- 
sonal representative  of  the  debtor,  who  has  full  knowledge  of  the 
affairs  of  the  estate  and  a  full  legal  control  and  disposing  power  over 
the  same  as  if  made  by  the  debtor  himself.  It  is  equally  proof  that 
the  debt  is  due  and  unpaid  and  remains  in  force.' 

"  A  promise,  by  one  of  two  or  more  executors,  to  pay  a  barred  debt,  is 
regarded,  in  those  states  that  concede  the  power  to  the  personal  repre- 
sentative to  revive  the  debt,  to  be  as  effectual  as  a  promise  by  all  of  the 
executors.™ 

"  An  acknowledgment  of  the  debt  is  sufficient  to  take  the  debt  out  of  the 
statute,  although  made  by  the  executor  or  personal  representative,"  and 
so  also  is  a  part  payment.0  But  in  South  Carolina  and  in  Maine,  it  is 
affirmed  that  nothing  but  an  express  promise  will  revive  the  debt.p 

"  Where  the  debt  is  not  barred  at  the  time  of  the  decedent's  death,  a 

(k)  Citing  Northcutt  v.  Wilkinson,  Brown    v.    Anderson,    13    Mass.   201; 

12  B.  Mon.  408.  Hanson  v.  Felton,  13  Pick.  206;  Lam- 

(1)  Citing   Brown   v.    Anderson,  13  son  v.  Shutt,  4  Allen,  359. 

Mass.  201.  (o)  Citing    Foster    v.    Starkey,    12 

(m)  Citing  Shreve  v.  Joyce,  36  N.  Cush.  324;  Fisher    v.  Metcalf,  7  Allen. 

J.  L.  44;  Northcutt  U.Wilkinson,  12  209. 

B.  Mon.  408;  Cobham  v.  Adm'r,  2  Am.  (p)  Citing  Oakes  ?-.  Mitchell.  15  >fe. 

Dec.  612.  360;  Wilson  v.  Wilson,  1  McMullan's 

(n)  Citing  Hord  r.  Lee,  4  Mon.  36;  F.q    HH1. 


X.]  LIMITATION'S   OF  ACTIONS.  203 

promise  by  the  executor  or  administrator  to  pay  such  claim  will  furnish 
a  new  period  from  which  the  statute  is  to  run.  This  principle  is  gen- 
erally admitted,  even  in  those  states  which  deny  to  the  personal  repre- 
sentative the  power  to  revive  a  debt ;  as  a  still  existing  demand  upon 
the  estate  is  such  a  legal  charge  as  the  executor  or  administrator  is 
empowered  to  recognize  and  pay.q 

"  Tlie  special  statute  limiting  the  time  within  which  an  action  must  be 
brought  against  the  executor  in  his  official  capacity  must  be  pleaded 
by  him,  nor  can  he  by  any  promise  or  acknowledgment  take  the  case 
without  the  provisions  of  the  act."r 

It  will  be  seen  at  once,  from  this  citation  of  authorities,  that  in  this 
state,  where  the  supreme  court  has  gone  no  farther  than  to  express  a 
doubt  upon  the  point,  no  definite  rule  can  be  laid  down.  The  better 
rule  seems  to  be  that  where  the  debt  is  barred  by  the  statute  of  limita- 
tions in  the  lifetime  of  the  debtor,  the  executor  or  administrator  has 
no  power  to  make  such  a  promise,  acknowledgment,  or  part  payment, 
as  will  revive  the  debt,  but  where  the  debt  is  not  barred  at  the  death 
of  the  debtor  such  promise,  acknowledgment,  or  part  payment  will 

bind  the  estate. 

PARTNERS. 

295.  A  promise  or  part  payment  by  one  partner  will  bind 
the  firm  if  made  before  dissolution,  but  not  if  made  after- 
ward.— The  promise  of  one  partner  is  the  promise  of  all,  and,  there- 
fore, the  promise  of  one  takes  the  case  out  of  the  statute  as  to  all,  if 
the  debt  is  one  within  the  business  of  the  partnership.8  But  it  is  other- 
wise after  dissolution.  With  the  dissolution  of  the  partnership  the 
power  of  one  of  the  partners  to  bind  the  firm  by  any  contract  he  makes 
.ceases,  and  his  acknowledgment,  promise,  or  part  payment,  will  bind 
himself  alone.1 

In  England,  and  some  of  the  states,  the  rule  is  the  other  way. 
An  interesting  discussion  of  the  whole  question  will  be  found  in  the 
note  to  Chardon  v.  Oliphant,  0  Am.  Dec.  572,  where  the  leading  au- 

(q)  Citing    Bishop    i>.    Harrison,   2  (s)  Story  on  Part.,  $  107,  323,  324; 

Leigh,  532;  Seigh  v  Aeord,  21  Gratt.  Parsons'  Part.,  184,  185,  186,  187,  188, 

365,  370;  Heath  v.  Grinnell,  61   Barb.  189,  190  and  notes. 

189;  McLaren  v.  Martin,  36  N.  Y.  88;  (t)  Kirk  v.  Hiatt,  2  Ind.  322;  Yandes 

r  raw  ford  v.   Childress,   23   La.   Ann.  v.  Lefavour,  2   Blkf.  371 ;  Chardon  v. 

<4;  Walker  r.  Cruikshank,  Id.  252;  Oliphant,  6  Am.  Dec.  572  and  note  (3 

iiiccession    of    Romero,    29    Id.   493;  Brevard,  S.  C.  183);  Levi  v.  Cadet,  17 

Ciriffin  v.  The  Justices,  17  Ga.  96.  Am.  Dec.  650  and  note;  17  Sergeant  & 

(r)  CitingS  Williams  on  Ex.,  g  1803,  Rawle.  126;  Story  on  Part.,  §  324  et 

note  q,  6  Am.  ed.  seq. ;   Dickerson  r.  Turner.  12  Ind.  223; 

Conkey  v.  Barb,  22  Ind.  196. 


204  LIMITATIONS   OF  ACTIONS.  [CHAP. 

thorities,  both  in  England  and  in  this  country,  are  cited.  The  rule  in 
this  state,  that  the  partner  has  no  such  power  after  dissolution,  is  based 
upon  the  ground  that  the  promise  or  part  payment  is  a  new  contract, 
and  not  a  mere  admission  of  liability  on  the  original  debt. 

In  the  case  of  Kirk  v.  Hiatt,  2  Ind.  322,  it  is  said :  "  This  seems  to 
be  the  turning  point  of  the  question,  which  has  been  much  discussed, 
whether  an  acknowledgment  by  one  partner,  made  after  the  dissolu- 
tion, binds  the  other  partners  so  as  to  revive  a  partnership  debt  other- 
wise barred  by  a  statute  of  limitations.  The  better  opinion  seems  to 
be  that  it  does  not,  because  a  promise,  to  be  sufficient  to  revive  a  debt 
which  has  become  extinct,  must  be  founded  upon  a  new  contract, 
though  springing  out  of  and  supported  by  the  original  consideration." 
Accordingly,  it  is  held  that  while  the  promise,  acknowledgment,  or 
part  payment  will  not  revive  the  statute  of  limitations,  on  the  ground 
that  it  can  only  be  effective  as  a  new  contract,  admissions  made  by  one 
partner  connected  with  the  partnership  business  will  bind  the  firm  even 
after  dissolution.  But,  in  order  to  have  this  effect,  the  admission  must 
be  made  at  the  time  of  transacting  the  partnership  business,  and  be 
directly  connected  with  it,  thus  placing  the  admissions  of  a  partner  on 
the  same  footing  with  those  of  an  agent." 

CITIZENS   OF   BELLIGERENT   POWERS. 

296.  The  statute  of  limitations  does  not  run  between  citi- 
zens of  different  belligerent  powers  during  the  existence  of 
war. — The  question  as  to  the  effect  of  the  existence  of  war  upon  the 
statute  of  limitations,  where  the  parties  to  the  contract  belonged  to  the 
different  belligerent  powers,  came  before  our  supreme  court  in  the  case 
of  Perkins  v.  Rogers,  35  Ind.  124,  and  was  thoroughly  and  exhaustively 
considered  in  the  able  opinion  delivered  by  Buskirk,  J.;  the  proposi- 
tions laid  down  by  the  court,  which  seem  to  cover  the  whole  ground, 
are  given  here  as  a  full  and  correct  statement  of  the  law  : 

"The  foregoing  authorities  clearly  establish  the  following  proposi- 
tions : 

"First.  That  the  war-making  power  is,  by  the  constitution,  vested 
in  congress,  and  that  the  president  has  no  power  to  declare  war  or  con- 
clude peace,  except  as  he  may  be  empowered  by  congress. 

"Second.  That  the  existence  of  war  and  the  restoration  of  peace  ar<- 
to  be  determined  by  the  political  department  of  the  government,  and 
that  such  determination  is  binding  and  conclusive  upon  the  courts,  and 

[u)  Kirk  v.  Hiatt,  2  Ind.  322;  Taylor  v.  Hilyer,  3  Blkf.  433;  Tandes  v. 
La*favour,  2  Blkf.  371. 


X.]  LIMITATIONS    OF  ACTIONS.  205 

deprives  the  courts  of  the  power  of  hearing  proof,  and  determining  as 
a  question  of  fact  either  that  war  exists  or  has  ceased  to  exist. 

"Third.  That  the  courts  will  take  judicial  notice  of  the  existence  of 
war  or  the  restoration  of  peace,  when  proclaimed  by  the  president. 

"Fourth.  That  the  late  rebellion  did  not  become  a  civil  war,  and 
was  not  governed  by  the  rules  of  war,  until  the  16th  of  August,  1861, 
when  the  president  issued  his  proclamation  under  and  in  pursuance  of 
the  act  of  congress  of  July  13,  1861. 

"Fifth.  That  civil  war  is  governed  by  the  same  rules  as  a  foreign 
war,  and  the  legal  consequences  are  the  same. 

"Sixth.  That  the  proclamation  of  the  president  placed  all  the  inhab- 
itants of  the  State  of  Louisiana  in  a  state  of  insurrection,  made  them 
the  enemies  of  the  United  States  and  the  inhabitants  of  the  adhering 
states,  and  rendered  all  commercial  intercourse  unlawful,  except  such 
as  might  be  carried  on  under  and  by  virtue  of  a  special  license  and 
permit  of  the  president,  under  the  rules  and  regulations  prescribed  by 
the  secretary  of  the  treasury. 

"Seventh.  That  all  contracts  made  during  the  war  by  belligerents, 
and  not  licensed  and  permitted  by  the  president  were  absolutely  void. 

"Eighth.  That  contracts  made  prior  to  the  war  were  suspended 
during  the  existence  of  such  war  ;  that  the  remedy  upon  such  contracts 
was  suspended  until  the  restoration  of  peace,  when  the  debt  and  the 
remedy  revived. 

"Ninth.  During  the  existence  of  the  war  an  inhabitant  of  a  state 
in  rebellion  had  no  right  to  institute  or  maintain  any  suit  in  any  court 
in  the  adhering  states,  and  that  consequently  the  statute  of  limitations 
did  not  run  against  such  person  during  the  existence  of  the  war. 

"Tenth.  That  the  only  legal  effect  of  the  occupation  of  the  city  of 
New  Orleans  was  to  authorize  the  president  to  exercise  the  discretion- 
ary power  vested  in  him  by  the  proviso  to  the  fifth  section  of  act  of 
congress  of  July  13,  1861 ;  that  by  said  act  of  congress  the  president 
was  authorized  to  license  and  permit  limited  commercial  intercourse ; 
that  such  persons  as  had  a  license  and  permit  from  the  president  might 
lawfully  trade  ;  that  such  license  and  permit  did  not  confer  any  right 
beyond  that  of  trading ;  that  no  citizen  of  the  State  of  Louisiana  had 
the  lawful  right  to  carry  on  commercial  intercourse  without  he  had  a 
license  and  permit  from  the  president,  issued  in  strict  conformity  to  the 
rules  and  regulations  prescribed  by  the  secretary  of  the  treasury ;  that 
such  occupation  did  not  restore  peace  or  release  the  inhabitants  thereof 
from  the  legal  consequences  of  their  alienage  and  enmity,  or  give  them 
a  personal  standing  in  our  courts. 

"Eleventh.  That  the  plaintiff,  being  an  inhabitant  of  the  State  of 


206  LIMITATIONS   OF  ACTIONS.  [CHAP. 

Louisiana  during  tne  war,  was  the  enemy  of  all  the  inhabitants  of  In- 
diana, and  consequently  had  no  right,  during  the  existence  of  the  war, 
to  institute  and  maintain  an  action  on  the  contract  sued  on. 

"Tivel/Oi.  That  while  the  courts  will  take  judicial  notice  that  all  the 
inhabitants  of  the  State  of  Louisiana  were  in  insurrection,  they  will 
not  take  judicial  notice  that  any  of  such  inhabitants  maintained  a 
loyal  adhesion  to  the  Union  and  constitution,  or  that  any  part  of  said 
state  was  occupied  and  controlled  by  the  forces  of  the  United  States 
engaged  in  the  dispersion  of  the  insurgents,  or  that  any  particular  per- 
son had  a  license  or  permit  from  the  president  to  carry  on  commercial 
intercourse,  but  that  a  party  relying  upon  such  facts  must  allege  and 
prove  them. 

"Thirteenth.  That  while  actual  hostilities  ceased  in  April,  1865, 
peace,  with  its  legal  consequences,  was  not  restored  until  the  20th  of 
August,  1866,  when  the  president  issued  his  proclamation  proclaiming 
that  peace  existed  throughout  the  land. 

"Fourteenth.  That  no  part  of  the  account  sued  on  was  created  during 
the  existence  of  civil  war  and  when  commercial  intercourse  was  un- 
lawful. 

"Fifteenth.  That  the  time  that  intervened  between  the  16th  of  Au- 
gust, 1861,  and  the  20th  of  August,  1866,  is  not  to  be  included  in  de- 
termining whether  this  action  is  barred  by  the  statute  of  limitations, 
and  that  excluding  such  time  the  action  is  not  barred."  v 

The  propositions  laid  down  by  the  court  have  been  thus  fully  given, 
because  of  the  clear  statement -of  the  many  questions  raised  in  the  case, 
and  the  conclusions  reached  by  the  court  involving  the  consequences 

(v)  Perkins  v.  Kogers,  35  Ind.  124,  Emory,  5  Dall.  51;  Ware  v.  Hylton,  3 
167,  citing  Prize  Cases,  2  Blkf.  635;  Id.  199;  The  Rebekah,  1  C.  Rob. 
Jackson  Ins.  Co.  v.  Stewart,  6  Am.  Adm'r,  190;  The  Rapid,  1  Gallis,  295; 
Law  Reg.  735;  Allen  v.  Russell,  3  Am.  Jecker  v.  Montgomery,  18  How.  (U. 
Law  Rej;.,  N.  S.  361 ;  Dean  v.  Nelson,  S.)  110;  Griswold  v.  Waddington,  16 
10  Wall.  158;  Hanger  v.  Abbott,  6  Johns.  438;  United  States  v.  Ander- 
Wall.  532;  The  Adventure,  8  Cranch.  son,  9  Wall.  56;  14  U.  S.  Stat.  at 
221;  The  Anna,  3  Wheat.  435;  The  Large,  422;  The  Venice,  2  Wall.  258  ; 
Mariana,  6  C.  Rob.  Adm'r,  24;  The  The  Reform,  3  Wall  617;  The  Peter- 
Schooner  Sophie,  Id.  138;  The  Falcon,  hoff,  5  Wall.  28;  Mrs.  Alexander's 
Id.  194;  The  Eliza  Ann,  1  Dods.  244;  Cotton,  Id.  404;  The  United  States  v. 
The  Flatina,  Id.  450;  3  Phillm.  Int.  One  Hundred  Barrels  of  Cement,  3 
Law,  \  461 ;  The  Fuffren  Maria  Schroe-  Am.  Law  Reg.,  N.  S.  742;  The  United 
der,  3  C.  Rob.  Adm'r,  147;  The  Pearl,  States  v.  One  Hundred  and  Twenty- 
Id.  199;  The  Boede-5  Lust,  Id.  207;  nine  Package?,  2  An;.  Law  Reg.,  N.  S. 
The  Eenrom,  2  Id.  1  ;  The  Francis,  8  430;  12  Stat.  at  Large,  225,  257;  The 
Cranch,  354;  The  Frances,  Id.  418;  Grapeshot,  9  Wall.  129. 
Bolchos  v.  Darrell,  Bee,  74;  Rapalje  v. 


X.]  LIMITATIONS    OF  ACTIONS.  207 

of  the  war  as  affecting  contracts  entered  into  between  citizens  of  the 
two  sections  of  the  country  before  and  during  its  existence. 

JOINT   CONTRACTS. 

297.  Practice  where  one  of  several  persons  entitled  to 
bring  a  joint  action  is  barred  by  the  statute. — The  statute  pro- 
ides:  "  In  cases  where  part  only  of  the  persons  entitled  to  bring  an  ac- 
tion are  barred  by  the  statute  of  limitations,  all  may  be  joined  as  plaint- 
iffs ;  and  when  it  shall  appear  to  the  satisfaction  of  the  court,  by  ad- 
mission or  otherwise,   that  part  of  the  plaintiffs  are  barred  by  the 
statute,  thd  court,  upon  motion,  shall  order  the  names  of  such  plaint- 
iffs to  be  stricken  from  the  record,  and  the  action  may  be  prosecuted 
by  those  not  barred."" 

This  section  does  not  excuse  the  joinder  of  all  of  the  parties  plaint- 
iff in  an  action  on  a  joint  contract.  They  should  all  be  joined,  not- 
withstanding some  of  them  may  be  barred  by  the  statute. 

The  supreme  court  has  not  been  called  upon  to  construe  this  sec- 
tion. It  can  have  no  force  where  the  question  whether  part  of  the 
plaintiffs  are  barred  or  not  is  controverted.  In  such  case  the  court 
could  not  dispose  of  the  question  summarily  upon  a  mere  motion.  The 
parties  have  a  right  to  have  the  question  of  the  statute  of  limitations 
tried.  The  evident  intention  of  the  legislature  was  to  furnish  a 
means  by  which  parties  who  Avould  otherwise  have  to  be  joined  as 
plaintiffs  might  avoid  the  expense  of  a  trial  when  it  was  admitted 
that  they  were  barred  by  the  statute.  Such  cases  are  not  likely  to  oc- 
cur frequently  in  practice. 

MECHANICS'   LIENS. 

298.  Limitations  in  case  of  mechanics'  liens. — The  special 
statute  limiting  the  time  in  which  actions  to  enforce  mechanics'  liens 
shall  be  brought  deserves  especial  consideration.      The  statute  limits 
the  time  in  Avhich  notice  of  an  intention  to  hold  the  lien  shall  be  given 
to  sixty  days  after  the  completion  of  the  building  or  repairs.5    It  also 
provides  that  the  person  having  such  lien  may  commence  his  action 
"  at  any  time  within  one  year  from  the  completion  of  the  work  or  fur- 
nishing the  materials,  or  if  a  credit  be  given  from  the  expiration  of 
the  credit." y     The  provision  that  the  action  shall  be  brought  within 
one  year  after  the  completion  of  the  work  or  material  furnished,  or 
from  the  expiration  of  the  credit,  is  the  same  in  effect  as  to  provide 

(w)  R.  S.  1881.  §267.  (y)  R.  S.  1881,  §  5297;    Lawton  r. 

(x)   R.  S.  1881,  §  5296.  Case,  73  Ind.  60;  Sup'l  11.  S.  1881,  ft 

6951-69CG. 


208  LIMITATIONS   OF  ACTIONS.  [CHAP. 

that  the  action  shall  be  brought  within  a  year  after  the  cause  of  action 
accrues.  The  two  limitations,  one  of  the  time  of  giving  the  notice 
and  the  other  of  bringing  the  action,  are  in  no  way  dependent  upon 
each  other  so  far  as  the  time  is  concerned,  but  the  failure  to  give  the 
notice  in  time  takes  away  the  cause  of  action,  and  no  action  on  the 
lien  can  be  maintained.  The  notice  must  be  filed  within  sixty  days 
after  the  work  is  completed  or  material  furnished,  and  the  fact  that  n 
credit  is  given  does  not  extend  the  time.  It  is  otherwise  in  bringing 
the  action.  Some  of  the  earlier  cases  hold  that  the  notice  may  be 
given  within  sixty  days  after  tlie  debt  becomes  due,  but  these  cases  are 
founded  on  a  statute  requiring  the  notice  to  be  given  within  the  time 
stated  in  the  decisions. z 

Under  the  present  statute  it  is  held  that  it  is  not  sufficient  to  file  the 
notice  within  sixty  days  of  the  time  when  the  debt  becomes  due.  It 
must  be  within  sixty  days  after  the  completion  of  the  building,  although 
that  may  be  before  the  party  is  entitled  to  demand  payment.8 

299.  Time  ceases  to  run  from  the  time  notice  is  left  for 
record. — The  statute  requires  that  the  notice  shall  be  filed  in  the  re- 
corder's office  within  sixty  days.     It  was  held  in  one  case  that  the  notice 
must  be  recorded  within  the  time,  and  that  the  leaving  of  the  notice 
with  the  recorder  was  not  a  compliance  with  the  statute.b     But  the 
supreme  court  has  held  the  other  way  in  a  number  of  cases  decided 
both  before  and  since- this  decision,0  and    Falkner  v.  Colshear  has  been 
expressly  overruled  on  this  point. 

300.  Notice  must  show  if  a  credit  has  been  given,  or  the 
time  in  which  to  sue  will  be  limited  to  one  year  from  the 
completion  of  the  •work. — The  statute  fixes  two  different  times 
from  which  the  statute  may  run,  depending  upon  whether  a  credit  has 
been  given  or  not.     For  this  reason,  the  notice  should  so  state  if  a 
credit  has  been  given  and  when  the  credit  expires.     If  the  notice  fails 
to  state  that  a  credit  has  been  given,  the  mechanic  must  bring  his  ac- 
tion within  one  year  from  the  completion  of  the  work,  at  lea.-r  us 
against  subsequent  purchasers.    They  have  a  right  to  presume  that  the 
cause  of  action  accrued  at  the  time  the  work  was  completed,  or  the 

(z)  Robinson  v.  Marney,  5  Blkf.  329 ;  McKinney   v.  Springer,  6    Blkf.  511; 

Kev.  Stat.  1838,  p.  413,  §  7.  Goble  v.  Gale,  7  Blkf.  218;  Green  r. 

(a)  The   City  of  Crawfordsville   v.  Green,  16  Ind.  253;  Waldo  v.  Walters. 
Brundage,  57  Ind.  262.  17  Ind.  534 ;  Sharpe  v.  Clifford,  44  Ind. 

(b)  Falkner    v. Colshear, 39  Ind. 201.  346;  Wilson  v.  Hopkins,  51  Ind.  231  ; 

(c)  Millikin  ?•.  Armstrong,  17  Ind.  The  City  of   Crawfordsville   v.  Brun- 
456;  Robinson  v.  Marney,  5  Blkf.  329;  dage,  57  Ind.  262. 


X.]  LIMITATIONS   OF  ACTIONS.  209 

material  furnished,  and  may  buy  upon  the  faith  of  this  presumption 
after  the  year  from  the  completion  of  the  work,  and  the  lien  can  not 
be  enforced  against  the  property  in  their  hands. d 

According  to  the  syllabus  of  the  case  of  Schneider  v.  Kolthoff,  no 
action  could  be  brought  under  such  a  notice,  even  against  the  owner 
of  the  property  who  contracted  the  debt,  after  the  expiration  of  a  year 
from  the  completion  of  the  work.  The  decision  does  not  so  hold.  The 
rule  is  limited  to  actions  against  subsequent  purchasers,  and  is  baseu 
upon  the  theory  that  the  purchaser  has  the  right  to  presume  that  no 
credit  was  given.  This  reason  does  not  apply  to  the  debtor,  as  his 
knowledge  must  be  equal  to  that  of  the  other  party  to  the  contract. 
The  court  say  the  notice  is  given  for  the  benefit  of  the  public,  but  the 
statute  does  not  require  that  it  should  state  that  a  credit  was  given, 
and  as  against  the  debtor  there  is  no  reason  why  the  notice  should  be 
required  to  go  beyond  the  requirements  of  the  statute. 

301.  Limitation  does  not  apply  to  notice  required  by  sec- 
tion 5295  to  be  given  by  sub-contractors. — Section  5295  of  the 
statute  provides  that  a  sub-contractor,  journeyman,  laborer,  or  material 
man  may,  by  giving  the  owner  of  the  building  notice,  render  him  lia- 
ble for  work  done  or  material  furnished.6    This  notice  is  in  order  to  fix 
a  personal  liability  upon  the  owner  of  the  property,  and  not  to  acquire 
a  lien  upon  the  property  itself.    The  section  limiting  the  time  in  which 
notice  shall  be  given  and  the  action  brought  does  not  apply  to  the 
rights  given  under  this  section.     The  notice  authorized  by  the  section 
may  be  given  at  any  time  before  the  owner  has  paid  the  original  con- 
tractor, and  the  right  to  bring  the  action  is  only  affected  by  the  general 
statute  of  limitations/ 

302.  When  statute  commences  to  run  in  such  cases.— 
Some  question  might  arise  as  to  the  time  when  the  statute  of  limitations 
would  commence  to  run  in  such  a  case.     If  the  sub-contractor's  claim 
is  due  at  the  time  the  notice  is  given,  and  there  is  sufficient  due  from 
the  owner  to  the  original  contractor  to  pay  his  claim,  his  cause  of  ac- 
tion would  accrue  at  the  time  notice  is  given  ;  but  if  his  own  claim  is 
not  due,  there  is  no  reason  why  he  should  be  allowed  to  enforce  it 
against  the  owner  of  the  building  until  it  is  due.     If  the  money  to  be 

(d)  Schneider   v.  Kolthoff.    59   Ind.         (f)  Barker  v.  Buell,    35    Ind.   207; 
568;  Gilbert  v.  Plant,  18  Ind.  308.  O'Halloran  v.  Leaehey,   39   Ind.  150; 

(e)  R.  S.  1881,  §  5295.  The  School  Town  of  Princeton  v.  Gib- 

hart,  61  Ind.  187. 
14 


210  LIMITATIONS   OF  ACTIONS.  [CHAP. 

paid  by  the  owner  to  the  original  contractor  is  not  due  when  the  notice 
is  given,  he  could  not  be  compelled  to  pay  the  sub-contractor  before 
his  contract  requires  him  to  pay.  In  either  of  these  cases,  the  statute 
would  commence  to  run  when  the  claim  is  due. 


HEIRS,  DEVISEES,  AND   DISTRIBUTEES. 

303.  Limitation  of  actions   against  heirs,  devisees,  and 
distributees  for  the  debts  of  the  decedent. — The  right  of  a 
creditor  of  the  decedent  to  maintain  an  action  against  the  heirs,  de- 
visees, or  distributees  is  dependent  upon  his  disability.     And  the  disa- 
bility must  arise  either  from,  insanity,  infancy,  or  his  being  out  of  the 
state,  and  one  or  the  other  of  these  disabilities   must  exist  for  six 
months  prior  to  the  final  settlement  of  the  estate.8     If  no  such  disa- 
bility exists,  he  must  file  his  claim  against  the  estate  before  final  set- 
tlement ;  and  the  fact  that  no  administrator  has  been  appointed,  gives 
him  no  cause  of  action  against  heirs,  devisees,  or  distributees.11 

The  heirs  are  only  liable  to  the  extent  of  the  property  received  by 
each,  and  the  liability  does  not  exist  unless  there  has  been  a  final  set- 
tlement of  the  estate.4  And  where  the  heirs  become  liable  by  reason 
of  the  disability  of  the  creditor,  the  action  must  be  commenced  within 
one  year  after  the  disability  is  removed.J 

THE  UNITED   STATES   AND   STATE   OF   INDIANA. 

304.  The  United  States  not  barred  and  the  State  of  In- 
diana not  barred  by  the  statute,  except  as  to  sureties. — 
Prior  to  the  statute  providing  otherwise,  the  rule  was  well  settled  by 
authority  that  the  United  States  and  the  state  would  not  be  barred  by 
any  limitation  fixed  by  the  statute. k     But  our  code,  as  originally  en- 
acted, provided  expressly  that  the  state  and  the  United  States  should 
be  barred  as  other  persons.1 

The  revised  code  provides  that  "  limitations  of  actions  shall  not  bar 
the  State  of  Indiana  except  as  to  sureties,"  and  this  section  is  a  substi- 
tute for  the  original  section  on  the  same  subject.111 

If  the  rule  is  that  the  state  would  not  be  barred  unless  it  was  so 

(g)  R.  S.  1881,  §  2442.  (j)  The  Northwestern  Conference  of 

(h)  Wilson  v.  Davis,  37  Ind.  141;  Universalists   v.   Myers,  36  Ind.  375; 

The  Northwestern  Conference  of  Uni-  Rinard  v.  West,  48  Ind.  159. 

versalists  v.  Myers,  36  Ind.  375;  Bu-  (k)   Ang.  on  Lim.,  g  37,  and  authori- 

senback  v.  Healey,  93  Ind.  450.  ties  cited. 

(i)  The  Northwestern  Conference  of  (1)2  B.  S.  1876,  p.  129,  \  224. 

Universalists  v.  Meyers,  36  Ind.  375;  (m)  K.  S.  1881,  \  304. 

Stevens  v.  Tucker,  87  Ind.  109. 


X.]  LIMITATIONS   OF  ACTIONS.  211 

expressly  provided,  the  provision  that  the  limitations  should  not  bar 
the  state  is  superfluous.  As  the  section  now  stands,  the  United  States 
not  being  named  in  the  act  would  not  be  barred,  and  the  state  is  not 
barred  except  as  to  sureties." 

JUDGMENTS  AND   DECREES. 

305.  Limitations  of  judgments  and  decrees. — "  Every  judg- 
ment and  decree  of  any  court  of  record  of  the  United  States,  or  of  this 
or  any  other  state,  shall  be  deemed  satisfied  after  the  expiration  of 
twenty  years."0 

It  was  held  under  the  statute  of  1843,  which  was  the  same  in  effect 
as  this  section,  that  the  statute  was  not  a  bar  to  an  action  after  twenty 
years,  but  only  raised  a  presumption  of  payment.p 

But  the  point  has  been  clearly  decided  the  other  way  under  the  pres- 
ent statute  of  limitations. q 

After  quoting  the  section  under  consideration,  the  court  say:  "In 
the  case  under  consideration  the  question  is  governed  by  the  code  of 
1852,  which  contains  the  following  provision,  viz. :  '  Sec.  211.  The  fol- 
lowing actions  shall  be  commenced  within  the  periods  herein  prescribed 
after  the  cause  of  action  has  accrued,  and  not  afterwards : 

"  '  5.  Upon  contracts  in  writing,  judgments  of  a  court  of  record,  and 
for  the  recovery  of  the  possession  of  real  estate,  within  twenty  years.' 

"  This  provision  would  seem  to  be  conclusive  upon  the  question  in- 
volved, but  it  is  insisted  that  it  is  controlled  by  section  225.  .  .  . 

"We  can  not  concur  in  this  position.  The  two  provisions  of  the 
statute  referred  to  relate  to  different  matters ;  the  first  limits  the  time 
within  which  the  action  may  be  brought  after  the  cause  thereof  accrued, 
the  other  relates  to  the  question  of  payment  or  satisfaction,  and  de- 
clares that  such  judgments  shall  be  deemed  satisfied  after  the  expira- 
tion of  twenty  years.  .  .  . 

"The  case  may  come  within  one  of  the  exceptions  enumerated  in 
sections  215  and  216,  and  the  action  may  not,  therefore,  be  barred, 
though  more  than  twenty  years  may  have  elapsed  after  the  cause  of 
action  accrued,  and  still  the  presumption  of  satisfaction  would  arise 
under  section  225." 

HOW   QUESTION   RAISED. 

306.  How  the  question  of  the  statute  of  limitations  may 
be  raised. — The  manner  in  which  the  question  of  the  statute  of  limit- 

(n)  People  v.  Gilbert,  18  Johns.  228.     224;    Barker   v.  Adams,  4   Ind.   574; 
(o)  K.  S.  1881,  §  305.  Hendricks  v.  Comstoek,  12  Ind.  238. 

(p)  Keddington   v.    Julian,   2    Ind.         (q)  King  v.  Manville,  29  Ind.  134. 


212  LIMITATIONS   OF  ACTIONS.  .         [CHAP. 

ations  may  be  raised  differs  in  different  states.  In  most  of  the  states 
there  is  an  express  provision  that  the  defense  must  be  specially  pleaded 
by  way  of  answer/  We  have  no  such  statutory  provision.  The  au- 
thorities in  this  state,  on  this  point,  are  numerous  and  conflicting ;  but 
the  rule,  as  now  established,  is  that  the  question  may  be  raised  by  de- 
murrer in  two  classes  of  cases:  1.  Where  the  limitation  is  absolute 
without  any  exception,  and  the  complaint  shows,  on  its  face,  that  the 
cause  of  action  is  barred ;  2.  Where  the  complaint  shows,  on  its  face, 
that  the  action  is  commenced  after  the  time  limited,  and  that  none  of 
the  exceptions  provided  in  the  statute,  in  that  class  of  actions,  exist.9 

The  rule  in  equity  was,  that  the  objection  could  be  taken  advantage 
of  by  demurrer  where  it  appeared  on  the  face  of  the  bill.' 

But  where  the  defect  was  not  apparent,  on  the  face  of  the  bill,  it 
must  be  presented  by  a  plea.u  The  result  of  this  rule  was,  that  if  the 
bill  showed,  upon  its  face,  that  the  action  was  barred,  it  was  incumbent 
upon  the  plaintiff  to  show  that  some  one  of  the  exceptions  existed 
that  would  take  the  case  out  of  the  operation  of  the  statute,  or  the  bill 
would  be  subject  to  demurrer,  and  this  is  the  rule  in  some  of  the 
states.7 

307.  Statute  must  be  specially  pleaded. — If  the  statute  can 
not  be  reached  by  demurrer,  under  the  rules  laid  down  in  the  foregoing 
section,  it  must  be  specially  pleaded  by  way  of  answer,  and  can  not 
be  proved  under  the  general  denial.  *  But  ii  may  be  in  actions  against 
decedent's  estates.  (1) 

(r)  Pom.  Rem.,  $  713,  714.  146;    Humbert   v.  Trinity    Church,    7 

(s)  Hanna  v.  The  Jeffersonville,  etc.,  Paige,  195;  Sturgis  v.  Barton,  8  Ohio 

R.   R.   Co.,    32    Ind.   113;    Potter   v.  St.  215;   Bliss'  Code  PL,  §355;  Kene- 

Smith,  36  Ind.  231 ;  Perkins  v.  Eogers,  dy  v.  Williams,  11  Minn.  314;  McAr- 

35   Ind.   124;    Harlan  v.  Watson,   63  die  v.  McArdle,  12  Minn.  98;  Hoyt  v. 

Ind.  143;  Baugh  v.  Boles,  66  Ind.  376;  McNeil,  13  Minn.  390;  Parker  v.  Berry, 

Cravens  t?.  Duncan,  55  Ind.  347 ;  Kent  12    Kans.  351 ;   Brennon   v.  Ford,   46 

v.  Parks,  67  Ind.  53.  Cal.  7, 12;  Kobinson  v.  Allen,  37  Iowa, 

(t)  Story's  Eq.  PI.,  §  484.  27;   Spearer  v.  Walsh,  30  Iowa,  361; 

(u)  Story's  Eq.  PI.,  §  750.  Springer   v.  Clay  Co.,  35   Iowa,  241 ; 

(v)  Ang.  on   Lim.    (4th   ed.J   §  29;  Vase  v.  Woodford,  29  Ohio  St.  245; 

Van  Hook  v.  Whitlock,  7  Paige,  375;  People  v.  Rensselaer  Ins.  Co.,  38  Barb. 

Wisner  v.  Barnet,  4  Wash.  C.  C.  631;  323;  Estee's  PI.  and  Forms,  743,  §  144. 
Muer  v.  Trustees,  etc.,  3  Barb.  Ch.  477 ;  (w)  The  Jeffersonville,  etc.,  R.  R. 

Dunlap  v.Gibbs,  4  Yerg,  94,  1  Dan.  Ch.  Co.  v.  Hendricks,  41  Ind.  48,  62;  Pot- 

Pr.  584 ;  Deloraine u.Browne,  3  Bro.Ch.  ter  v.  Smith,  36  Ind.  231;   McCallum 

C.  633;  Thomas  v.  Harvey's  Heirs,  10  v.  Pleasants,   67  Ind.  542;    Harlan  v. 

Wheat.  146;  Elmendorf  v.  Taylor,  10  Watson,  63  Ind.  143;  Bliss'  Code  PI. 

Wheat.  152;  Miller  v.  Mclntire,  6  Pet.  §  355;    Pom.  Rem.,  §  714;    Huston  v. 

61;   McKinney  v.  McKinney,  8  Ohio  Crayhead,  23  Ohio  St.  198,  219 ;  Daven- 

St.  423;  Chiles  v.  Drake,  2  Met.  (Ky.)  port  v.  Short,  17  Minn.  24. 

(1)  Zeller  v.  Griffith,  89  Ind.  80. 


X.]  LIMITATIONS    OF  ACTIONS.  213 

308.  Statute  need  not  be  pleaded  in  actions  to  recover 
real  estate. — There  is  an  exception  to  the  rule  in  the  case  of  actions 
to  recover  real  estate.     In  this  class  of  actions  it  is  provided,  by  stat- 
ute, that  the  defendant  may  give  in  evidence  every  defense  to  the  ac- 
tion that  he  may  have,  either  legal  or  equitable,  under  the  general  de- 
nial.1   The  question  whether  the  statute  must  be  specially  pleaded  in 
a  partition  proceeding  or  not,  was  presented  to  the  supreme  court  in  a 
late  case;  y  but  the  question  was  met  with  a  "  Query :  Whether,  in  sucli 
a  case,  the  statute  ought  to  be  pleaded  so  as  to  allow  the  plaintiff  to 
reply  the  exceptions  ?  "     There  is  no  reason  why  the  statute  should  not 
be  specially  pleaded  in  partition  proceedings  as  in  other  cases.     The 
exception  to  the  rule,  in  actions  to  recover  real  estate,  is  based  upon  a 
special  statute  that  applies  to  that  class  of  actions  alone. 

309.  Exceptions  to  the  statute  must  be  specially  pleaded 
by  way  of  reply. — The  rule  in  this  state,  that  the  statute  of  limita- 
tions must  be  pleaded  by  way  of  answer,  is  based  upon  the  ground 
that  the  plaintiff  should  not  be  required  to  allege  the  exceptions  in  his 
complaint,   which  would  be  necessary  if  the  question  could  be  pre- 
sented by  demurrer.     It  is  held,  therefore,  that  the  plaintiff  may  meet 
the  plea  of  the  statute  of  limitations  by  a  special  reply,  alleging  any 
of  the  exceptions  that  will  take  the  case  out  of  the  operations  of  the 
statute.     The  exception  must  be  specially  pleaded,  and  can  not  be 
proved  under  the  general  denial,  except  where  the  defendant  is  not  re- 
quired to  answer  the  statute  specially.2 

310.  May  plead  exceptions  in  supreme  court. — On  motion 
to  dismiss  in  the  supreme  court,  on  the  ground  that  the  appeal  is  not 
taken  in  time,  the  appellant  may  plead  any  of  the  exceptions  that  will 
avoid  the  statute.* 

It  was  held,  in  the  case  cited,  that  it  was  not  necessary  for  the  ap- 
pellee to  plead  the  statute  of  limitations  in  bar  of  the  appeal,  but  that 
the  question  was  properly  raised  on  a  motion  to  dismiss.  And  that  the 
appellant  might  avoid  the  motion  by  pleading  the  exception.  But  the 
appellee  is  not  bound  to  resort  to  a  motion  to  dismiss.  He  may,  if  he 
sees  proper,  plead  the  statute.  In  either  case  the  appellant  may  meet 
the  question  presented  by  pleading  the  exception,  thus  presenting  a 
question  of  fact  to  be  determined  by  the  court. 

lx)  R.  S.  1881,  §1055;  Vanduyn  v.  (z)  Strong  v. The  State,  57  Ind.  4'JS; 

Hepner,  45  Ind.  589;  Brown  v.  Maher,  Riser  v.  Snoddy,  7  Ind.  442;  Kent  v. 

68  Ind.  14;  Bliss'  Code  PI.,  §  356.  Parks,  (57  Ind.  53. 

(y)  Kent  v.  Taggart,  68  Ind.  163  (a)  Buntin  v.  Hooper,  59  Ind.  589. 


214 


JOINDER   OF  CAUSES   OF   ACTION. 


[CHAP. 


CHAPTER  XI. 


JOINDER  OF  CAUSES  OF  ACTION. 


SECTION. 

311.  The  statute. 

312.  Effect  of  misjoinder. 

313.  Difference  between  misjoinder  and 

duplicity. 

314.  Misjoinder  of  parties  and  causes 

of  action    in   same   complaint; 
how  defect  reached. 

315.  The  liabilities  of  defendants  must 

be  the  same. 

316.  Actions  against  different  defend- 

ants may  be  joined,  when. 

317.  Meaning  of  section   280  of  the 

statute. 

318.  Actions  for  tort  and  on  contract 

may  be  joined,  when. 

319.  The  rule  in  equity. 

320    Causes  that   may  be  joined  par- 
ticularly classified  in  Indiana. 

321.  Actions   to  set   aside    fraudulent 

conveyances  made  by  debtor  to 
different  parties  may  be  joined. 

322.  Meaning  of  term  "  cause  of   ac- 

tion." 

323.  Whether  causes  of  action  are  im- 

properly joined  determined  from 
facts  stated  in  complaint. 

324.  May  be  but  one  cause  of  action 

and  several  remedies. 

325.  In   equity,   if    plaintiff   had   one 

general  right,  there  was  but  one 
cause  of  action. 

326.  Meaning  of  phrase   "money  de- 

mands on  contract." 


SECTION. 

327.  Money  demand  for  a  tort  can  not 

be  joined  with  one  on  contract. 

328.  Statute  liberally  construed. 

329.  Difference  between  our  code  and 

those  of  other  states. 

330.  In  equity,  the  causes   authorized 

by  section  279  to  be  joined  were 
treated  as  one  cause  of  action. 

331.  Actions  against  husband  and  wife. 

332.  Guarantor  can  not  be  joined  with 

maker  of  notes. 

INJURY   TO   PROPERTY. 

333.  Construction  of  the  statute. 

INJURIES   TO  PERSON  AND  CHARACTER. 

334.  What  included  in  this  class. 

335.  Injuries  growing  out  of  the  same 

wrong  can  not  always  be  joined. 

336.  Causes  of  action   must   inure   to 

plaintiff  in  the  same  right. 

337.  Damages  to  real  estate ;  when  can 

be  joined  with  action  to  recover 
possession. 

338.  Actions  for  specific   performance 

and  to  avoid  contracts  for  fraud 
and  mistake. 

339.  To  recover  purchase-money,  and 

for  sale  of  real  estate. 

340.  Actions  for  partition  and  to  en- 

force lien    on   same  real  estate 
can  not  be  joined. 


311.  The  Statute. — "  The  plaintiff  may  unite  several  causes  of  ac- 
tion in  the  same  complaint,  when  they  are  included  in  either  of  the 
following  classes : 

"First.  Money  demands  on  contract. 


XI.]  JOINDER  OF   CAUSES  OF   ACTION.  215 

"Second.  Injuries  to  property. 

"Third.  Injuries  to  person  or  character. 

"Fourth.  Claims  to  recover  the  possession  of  personal  property,  with 
or  without  damages,  for  the  withholding  thereof,  and  for  injuries  to 
the  property  withheld. 

"Fifth.  Claims  to  recover  the  possession  of  real  property,  with  or 
without  damages,  rents,  and  profits  for  withholding  thereof;  and  for 
waste  or  damage  done  to  the  land ;  to  make  partition  of  and  to  deter- 
mine and  quiet  the  title  to  real  property. 

"Sixth.  Claims  to  enforce  the  specific  performance  of  contracts,  and 
to  avoid  contracts  for  fraud  or  mistakes. 

"Seventh.  Claims  to  foreclose  mortgages;  to  enforce  or  discharge 
specific  liens;to  recover  personal  judgment  upon  the  debt  secured  by 
such  mortgage  or  lieu ;  to  subject  to  sale  real  property  upon  demands 
against  decedents'  estates  when  such  property  has  passed  to  heirs,  de- 
visees, or  their  assigns ;  to  marshal  assets ;  and  to  substitute  one  per- 
son to  the  rights  of  another ;  and  all  other  causes  of  action  arising  out 
of  a  contract  or  a  duty,  and  not  falling  within  either  of  the  foregoing 
classes ;  but  causes  of  action  so  joined  must  affect  all  the  parties  to 
the  action,  and  not  require  different  places  of  trial,  and  must  be  sep- 
arately stated  and  numbered"' 

312.  Effect  of  misjoinder. — The  effect  of  misjoinder  of  causes  of 
action  under  this  statute  is  not  of  so  much  importance  in  practice  as 
would  at  first  be  supposed.     The  misjoinder  is  reached  by  demurrer  or 
motion  to  separate  the  causes  of  action. b 

The  only  effect  of  sustaining  the  demurrer  on  this  ground  is  that  the 
several  causes  of  action  must  be  separated  and  docketed  as  distinct  ac- 
tions.0 

313.  Difference  between  misjoinder  and  duplicity. — The  dif- 
ference between  a  misjoinder  of  causes  of  action  and  duplicity  should 
be  kept  in  mind.     Misjoinder  is  the  uniting  in  the  same  or  different 
paragraphs  of  complaint  causes  of  action  that  can  not   properly  be 
joined  under  the  statute.     Duplicity  is  the  joinder  of  different  causes 
of  action  or  defenses  in  the  same  paragraph.d    And  a  paragraph  of 
complaint  that  contains  more  than  one  cause  of  action  is  objectionable, 

(a)  R.  S.  1881,  §  278.  (c)  Lane  v.  The  State,  27  Ind.  108; 

(b)  R.  S.  1881,   §  339;    Burrows  v.     R.  S.  1881,  §  340. 

Holderraan,  31  Ind.  412;  Lane  v.  The        (d)  R.  S.  1881,  §338,  sub.  3;  Ibid., 
State,  27  Ind.  108 ;  The  C.,  H.  &  D.  R.    §  347,  sub.  3 ;   Johnson  v.  The  Craw- 
R.  Co.  v.  Chester,  57  Ind.  297;  Fritz     fordsville,  etc.,  R.  R.  Co.,  11  Ind.  280. 
v.  Fritz,  23  Ind.  388;  Baker  v.  McCoy, 
58  Ind.  215. 


216  JOINDER   OF   CAUSES   OF   ACTION.  [CHAP. 

on  the  ground  of  duplicity  even  where  the  statute  authorizes  the  joinder 
of  the  two.  Where  they  can  be  joined  they  can  not  be  united  in  the 
same  paragraph,  but  must  be  separately  stated  and  numbered. 

314.  Misjoinder  of  parties  and  causes  of  action  in  same 
complaint ;  how  defect  reached. — There  may  exist,  in  the  same 
complaint,  a  misjoinder  of  causes  of  action  and  of  parties.      Even 
where  the  causes  of  action  belong  to  the  same  class,  and  might  prop- 
erly be  joined,  if  the  different  causes  of  action  were  against  the  same 
parties,  yet  if  the  several  causes  of  action  are  not  all  against  the  same 
parties  they  can  not  be  joined.     There  would,  in  such  case,  be  not  a 
misjoinder  of  causes  of  action,  within  the  meaning  of  section  278  of 
the  code,  for  the  reason  that  the  causes  of  action,  if  against  the  same 
defendant,  would  be  properly  joined  under  that  section.     The  causes 
of  action  could  not  be  joined,  but  the  proper  objection  would  be  for  a 
misjoinder  of  parties.     And  it  has  been  held  that,  for  this  reason,  a 
joinder  of  several  causes  of  action,  of  the  same  class,  but  against  dif- 
ferent defendants,  can  not  be  reached  by  demurrer,  but  must  be  reached 
by  motion  to  separate  the  causes  of  action.6 

315.  The  liabilities  of  defendants  must  be  the  same. — In 
the  case  cited,  the  action  was  brought  on  two  administrator's  bonds. 
On  the  first  bond,  the  sureties  had  asked  to  be  released,  and  a  new 
bond  had  been  given  by  the  administrator,  with  other  sureties.     So  far 
as  the  administrator  was  concerned  the  two   actions  were  properly 
joined.     The  two  causes  of  action  were  for  money  demands  on  con- 
tract, and  therefore  belonged  to  the  same  class.     But,  as  to  the  sure- 
ties, their  liabilities  were  different.     One  set  of  sureties  were  bound, 
on  the  first  bond,  up  to  the  time  of  their  release,  while  the  liability  of 
the  second  set  of  sureties  commenced  with  the  giving  of  the  new 
bond.     Clearly  this  was  a  misjoinder  of  parties. 

Two  of  the  defendants,  who  were  sureties  on  the  second  bond,  de- 
murred to  the  complaint  on  the  grounds : 

First.  That  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action. 

Second.  That  there  was  a  defect  of  parties  defendant. 

Third.  That  several  causes  of  action  were  improperly  united. 

The  demurrer  was  overruled.  The  supreme  court,  in  passing  upon 
the  question,  say : 

"Another  objection  urged  to  the  complaint  is  that  there  was  a  mis- 
joinder  of  causes  of  action.  This  court  can  not  reverse  a  judgment 

(e)  Lane  v.  The  State,  27  Ind.  108. 


XI.]  JOINDER   OF   CAUSES   OF   ACTION.  217 

for  an  error  of  the  court  below,  either  in  sustaining  or  overruling  a  de- 
murrer for  misjoinder  of  causes  of  action.  The  misjoinder  of  causes 
of  action  referred  to  in  section  50  of  the  code  as  a  cause  of  demurrer 
is  evidently  where  two  or  more  causes  of  action,  though  between  the 
same  parties,  but  belonging  to  different  classes,  are  united  in  the  same 
suit,  in  violation  of  section  70  of  the  code.  Here  the  causes  of  action 
belong  to  the  same  class,  but  are  improperly  united  in  the  same  suit, 
because  they  are  against  different  defendants,  making  both  a  misjoinder 
of  causes  of  action  and  of  parties ;  and  the  complaint  is  still  further 
defective  in  uniting  both  causes  of  action  in  the  same  paragraph. 
These  defects  would  clearly  have  rendered  the  complaint  bad  on  de- 
murrer at  common  law,  but  it  is  otherwise  under  the  code.  The  com- 
plaint shows  a  valid  cause  of  action  against  each  set  of  defendants, 
and  the  defect  was  not  reached  by  the  demurrer,  assigning  as  a  cause 
that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  It  should  have  been  taken  advantage  of  by  motion,  which 
was  not  done." 

316.  Actions  against  different  defendants  may  be  joined, 
when. — The  rule  laid  down  in  this  case  must  not  be  understood  to 
apply  to  all  cases  under  the  code.  In  some  cases,  several  causes  of 
action  against  different  defendants  may  be  joined  without  rendering 
the  complaint  objectionable,  either  on  the  ground  of  misjoinder  of 
causes  of  action  or  of  parties. 

The  statute  provides  :  "  When  the  action  arises  out  of  contract,  the 
plaintiff  may  join  such  other  matters  in  his  complaint  as  may  be  nec- 
essary for  a  complete  remedy  and  a  speedy  satisfaction  of  his  judgment, 
although  such  other  matters  fall  within  some  other  one  or  more  of  the 
foregoing  classes.  When  several  causes  of  action  are  united,  belonging 
to  any  of  the  foregoing  classes,  the  court  may  order  separate  trials  for 
the  furtherance  of  justice." f 

This  section  has  been  very  liberally  construed  by  the  supreme  court. 
It  has  been  construed  to  authorize  the  joinder  of  causes  of  action 
growing  out  of  contract,  and  for  fraud  and  causes  of  action  against 
different  defendants.  Thus  it  has  been  held  that  where  the  debtor  has 
conveyed  his  real  estate  for  the  fraudulent  purpose  of  avoiding  the 
payment  of  his  debts,  the  creditor  may  sue  for  the  debt,  and  ask  to 
r-et  aside  the  conveyance  of  the  real  estate  in  the  same  action,  even 
where  the  debt  is  on  a  note  or  account  not  a  lien  on  the  land.g 

(f )  R.  S.  1881,  I  280.  v.  Edwards,  39  Ind.  165;   Love  v.  Mik- 

(g)  Frank    v.    Kesler,   30    Ind.    8;     als,  11  Ind.  227;  Lindley  v.  Cross,  31 
Wood  v.  Ostram,  29  Ind.  177;  Lipperd     Ind.  106. 


21 13  JOINDER  OF   CAUSES   OF   ACTION.  [CHAP. 

317.  Meaning  of  section  280  of  the  statute. — It  is  difficult  to 
determine  what  is  meant  by  the  section,  but  the  construction  given  it 
by  the  supreme  court  brings  it  in  conflict  with  every  rule  of  good 
pleading.     It  certainly  was  not  the  intention  of  the  legislature  that 
different  causes  of  action  against  different  defendants,  belonging  to 
different  classes  of  actions  and  requiring   different   kinds  of  relief, 
should  be  joined,  but  that  actions  belonging  to  different  classes  might 
be  joined  against  the'  same  defendant.    It  does  not  authorize  the  joinder 
of  other  parties  not  properly  joined  under  the  section  of  the  code  reg- 
ulating the  joinder  of  parties.     Giving  the  code  its  most  liberal  con- 
struction, it  could  hardly  be  claimed  that  it  authorizes  the  joinder  of 
two  parties  in  one  action,  where  the  judgment  against  one  must  be  for 
a  tort  and  the  other  upon  contract,  nor  against  one  to  enforce  a  con- 
tract made  with  the  plaintiff,  and  the  other  to  set  aside  a  contract 
made  between  him  and  his  co-defendant  on  the  ground  of  fraud. h 

318.  Actions  for  tort  and  on  contract  may  be  joined,  when. 
— The  terms  of  the  statute  are  broad  enough  to  authorize  the  joinder  of 
a  cause  of  action  for  a  tort  with  one  on  a  contract  when  it  is  against 
the  same  defendant,  and  necessary  for  a  complete  remedy  and  a  speedy 
satisfaction  of  his  j  udgment,  as  the  statute  applies  to  "  such  matters  as 
fall  within  some  other  one  or  more  of  the  foregoing  classes "  without 
any  limitations ;  and  when  this  is  done  "  the  court  may  order  separate 
trials  for  the  furtherance  of  justice." ' 

• 

319.  The  rule  in  equity. — The  rule  established  in  equity  as  to 
the  joinder  of  parties  and  causes  of  action  was  extremely  liberal,  and 
this  liberality  has  been  carried  into  the  practice  in  Indiana.     But  the 
fact  should  not  be  overlooked  that  the  code  of  this  state  differs  materi- 
ally from  that  of  every  other  state.     The  codes  of  other  states  are  gen- 
eral in  their  terms  authorizing  the  joinder  of  causes  of  action  growing 
out  of  "  the  same  transaction  or  transactions  connected  with  the  same 
subject  of  action.  "j 

320.  Causes  that  may  be  joined  particularly  classified  in 
Indiana. — In  Indiana  the  causes  that  may  be  joined  are  attempted  to 
be   particularly   classified.     Therefore,   in   determining   what  actions 
should  be  joined  in  this  state,  we  must  be  governed  by  this  classification, 

(h)  Iglehart's  Prac.,  p.  41,  §  35.  Ch.,  110,  urt.  5,  §  2 ;  Nebraska,  §?  87, 

(i)  K.  S.  1881,  §280.  88;  Minnesota,  §  103;  Florida,  §  117; 

(j)  Pom.  Rem.,  §  438,  citing  New  North  Carolina,  §  126;  South  Carolina, 

York  Code,  §  167  ;  Wisconsin  Ch.  125,  §  190. 

<}<}  31,    32;    Ohio,   §?  80,   81;    Missouri 


XI.]  JOINDER   OF   CAUSES   OF   ACTION.  219 

save  where  it  is  broken  into  by  section  280,  and  this  section  is  expressly 
limited  to  actions  arising  out  of  contract.  The  supreme  court  has 
shown  an  inclination  to  give  this  section  a  broader  construction  than 
it  is  believed  it  should  receive,  and  have  evinced  an  intention  to  be 
governed  by  the  rules  that  obtained  in  equity.  This  is  more  strongly 
marked  in  the  cases  already  referred  to,  where  actions  for  the  debt  and 
to  set  aside  fraudulent  conveyances  were  held  to  have  been  properly 
joined.  If  the  equitable  rule  is  to  govern  and  not  the  strict  classifica- 
_tion  of  the  statute,  these  decisions  are  strongly  supported  by  authority. 

321.  Actions  to  set  aside   fraudulent  conveyances  made 
by  debtor  to  different  parties  may  be  joined. — In  an  early  case 
in  New  York,  the  question  arose,  whether  in  case  of  several  convey- 
ances by  the  debtor  to  different  parties,  and  the  assignment  of  certain 
notes  to  other  parties,  one  action  could  be  brought  against  all  of  the  parties 
to  set  aside  the  conveyances  and  assignments,  and  to  subject  the  prop- 
erty, both  real  and  personal,  to  the  payment  of  the  debt.    The  question 
was  two-fold,  as  both  the  questions  of  the  joinder  of  parties  and  causes 
of  action  were  presented.     It  was  held  that  the  parties  were  properly 
joined,  and  that  there  was  not  a  misjoinder  of  causes  of  action.k 

The  case  was  thoroughly  considered,  and  the  opinion  reached  was 
unanimous.  The  decision  has  been  qualified  in  some  of  the  later  cases, 
but  the  principle  laid  down  is  fully  sustained  by  the  great  weight  of 
authority  in  New  York  and  other  states.1 

322.  Meaning  of  term   "cause   of  action." — In  determin- 
ing the  question  whether  or  not  there  is  a  misjoinder  of  causes  of 

(k)  Fellows  v.  Fellows,  4  Cowen,  Pr.  41 ;  Bank  of  America  v.  Pollock, 

682;  s.  c.,  15  Am.  Dec.  412.  4  Edw.  Ch.  215;  Boyden  v.  Lancaster, 

(1)  See  note  to  Fellows  v.  Fellows,  2  Patt.  &  H.  198;  Gaines  v.  Chew,  2 

15  Am.  Dec.  427,  citing  Hammond  v.  How.  U.  S.  619;  Bowers  v.  Keesecher, 

Hudson  River,  etc.,  R.  R.  Co.,  20  Barb.  9  Iowa,  422;  Busbee  v.  Sargent,  23 

378;  Boyd  v.  Hoyt,  5  Paige,  65;  Reed  Me.  269;  Carroll  v.  Roosevelt,  4  Edw. 

v.  Striker,  12  Abb.  Pr.  502;  Morton  v.  Ch.  211;  Butler  v.  Spann,  27  Miss. 

Weil,  11  Id.  421;  Lawrence  v.  Bank  234;  Forniquet  v.  Forstall,  34  Id.  87 ; 

of  Republic,  35  N.  Y.  320;  s.  c.,  31  Stone  v.  Knickerbocker  Life  Ins.  Co., 

How.  Pr.  502;  Williams  v.  Neal,  10  52  Ala.  589;  Rose  v.  Swann,  56  111.  37; 

Rich.  Eq.  338;  Planters',  etc.,  Bank  v.  Lewis  v.  St.  Albans  Iron  and  Steel 

\V;ilker,  7  Ala.  926;  Chase  v.  Searles,  Works,  50  Vt.  477;  Arnold  v.  Arnold, 

45  N.  H.  511 ;  Bartee  v.  Tompkins,  4  11  W.  Va.  449 ;  Smith  v.  McLain,  Id. 

Sneed,  623;  Randolph  v.  Daly,  16  N.  654.  See  also,  Bliss'  Code  PI.,  §115; 

J.  Eq.  313;  Wade  v.  Rusher,  4  Bos.  Bid  well  v.  Astor  Ins.  Co.,  16  N.  Y. 

537;  New  York,  etc.,  R.  R.  Co.  v.  263;  N.  Y.  Ice  Co.  v.  Northwestern 

Schuyler,  17  N.  Y.  592;  s.  c.,  7  Abb.  Ins.  Co.,  23  N.  Y.  357. 


220  JOINDER   OF   CAUSES   OF   ACTION.  [CHAP. 

action,  the  "  cause  of  action"  should  not  be  confounded  with  the  object 
of  the  action  or  the  remedy  sought  to  be  obtained.  But  one  cause  may 
entitle  a  party  to  several  remedies,  and  where  the  cause  of  action  is 
single,  the  fact  that  different  kinds  of  relief  are  asked  for  does  not 
render  the  complaint  objectionable  on  the  ground  of  misjoinder.  The 
term  "cause  of  action"  can  not  be  denned.  Mr.  Pomeroy,  in  his 
work  on  Remedies,  complains  that  the  courts  have  never  attempted  to 
define  the  meaning  of  the  term,  and  attempts  to  do  so  himself. m 
The  failure  of  the  learned  author  to  define  the  term,  is  proof  of  the 
wisdom  of  the  courts  in  refraining  from  any  such  attempt.  The  dif- 
ference between  the  cause  of  action  and  the  remedy  is  clearly  and 
aptly  illustrated,  however,  in  the  case  of  an  action  for  a  failure  of  the 
defendant  to  convey  real  estate  that  he  has  contracted  to  convey.  The 
author  says  :  "  Let  the  facts  which  constitute  the  plaintiffs'  primary 
right  be  a  contract  duly  entered  into  by  which  the  defendant  agreed  to 
convey  to  the  plaintiff  a  parcel  of  land,  and  full  payment  by  the  plaint- 
iff of  the  stipulated  price  and  performance  of  all  other  stipulations  on 
his  part.  Let  the  delict  be  a  refusal  by  the  defendant  to  perform  on 
his  part.  This  is  the  cause  of  action  and  it  is  plainly  single.  From  it 
there  arise  two  remedial  rights  and  two  corresponding  kinds  of  relief; 
namely,  the  remedial  right  to  a  compensation  in  damages,  with  the  relief 
of  actual  pecuniary  damages ;  and  the  remedial  right  to  an  actual  per- 
formance of  the  agreement  and  the  relief  of  an  execution  and  delivery 
of  the  deed  of  conveyance.  If  the  plaintiff  in  one  action  should  state 
the  foregoing  facts  constituting  his  cause  of  action,  and  should  demand 
judgment  in  the  alternative,  either  for  damages  or  for  a  specific  per- 
formance, he  would,  as  the  analysis  above  given  conclusively  shows, 
have  alleged  but  one  cause  of  action,  although  the  reliefs  prayed  for 
would  be  distinct,  and  would  have  belonged,  under  the  old  system,  to 
different  forums — the  common  law  and  the  equity  courts."  n 

323.  "Whether  causes  of  action  are  improperly  joined, 
determined  from  facts  stated  in  complaint. — The  question 
whether  two  causes  of  action  are  improperly  joined  or  not  must  be 
determined  from  the  facts  stated  in  the  complaint,  and  not  from  the 
demand  for  relief.  If  but  one  cause  of  action  is  disclosed  by  the  facts, 
the  pleading  is  not  objectionable,  although  the  pleader  may  attempt 
to  state  more  than  one,  or  may  claim  different  remedies.  The  com- 
plaint must  state  facts  sufficient  to  constitute  two  causes  of  action, 
'  or  there  is  no  misjoinder.0 

(m)  Pom.  Rem.,  '$  452.  453.  (o)  Pom.  Rem,  §  455;    Bliss'  Code 

<n)  Pom.  Rem.,  §  454;   Bliss'  Code     PI.  114,  115. 
PI,  §§113,  126. 


XI.]  JOINDER   OF   CAUSES   OF   ACTION.  221 

324.  May  be  but  one  cause  of  action  and  several  reme- 
dies.— It  has  been  shown,  in  considering  the  question  of  joinder  of 
parties,  that  it  is  not  necessary  that  the  same  relief  should  be  de- 
manded of  all  of  the  defendants.     The  question  is,  whether  the  plaint- 
iff has  more  than  one  cause  of  action.     If  there  is  but  one  cause  of  ac- 
tion that  entitles  the  plaintiff  to  different  kinds  of  relief  against  different 
defendants,  ,he  may  join  them  all  in  one  action,  and  the  judgment 
should  be  so  rendered  as  to  afford  such  relief  as  the  plaintiff  is  entitled 
to  against  each  defendant.1* 

325.  In  equity,  if  plaintiff  had   one  general  right,  there 
•was  but  one  cause  of  action. — Under  the  equity  practice,  the 
question  of  misjoinder,  or  multifariousness,  as  it  was  termed,  frequently 
arose,  and  the  rule  was  established  that  "  where  one  general  right  is 
claimed  by  the  plaintiff,  although  the  defendants  may  have  separate 
and  distinct  rights,"  the  complaint  is  not  objectionable  on  the  ground 
of  multifariousness.q 

This  should  be  regarded  as  the  correct  rule  in  Indiana,  subject  to 
the  classification  of  actions  that  may  be  joined  under  the  statute. 

326.  Meaning  of  phrase  "  money  demands  on  contract." 
— Under  the  first  subdivision  of  the  section  of  the  statute  cited  above, 
the  supreme  court  has  held  that  the  term  "  money  demands  on  con- 
tract "  means  actions  arising  out  of  contract  where  the  relief  demanded 
is  the  recovery  of  money,  and  the  statute  so  defines  the  term/ 

327.  Money  demand  for  a  tort  can  not  be  joined  with  one 
on  contract. — It  is  not  sufficient  that  the  actions  joined  should  be 
on  money  demands,  or  for  the  recovery  of  money.     The  demands  must 
also  arise  out  of  contract.     Therefore,  an  action  to  recover  money  for 
a  tort  can  not  be  joined  with  one  to  recover  on  a  demand  arising  out 
of  contract.     This  was  the  rule  before  the  code  was  enacted.8    And  the 
code  has  not  changed  the  rule.' 

(p)  Ante,  \  116.  ker,  5  Ind.  538;   Ward  v.  Hershberger, 

(q)  Dimmock  v.  Bixby,  20  Pick.  377 ;  38  Ind.  76. 

Yann  v.  Hargett,  2  Dev.  &  B.  Eq.  31 ;  (s)  Etchison  v.    Post,  5   Blkf.   140; 

Butler  v.  Spann,  27   Miss.  234;  Forni-  Bodley  v.  Roop,  6  Blkf.  158. 

quett  v.  Forstall,  34  Id.  87  ;  Browersr.  (t\  Boyer  t>.  Tiedman,  34  Ind.  72; 

Keesecher  9  Iowa,  422;   Bugbeev.  Sar-  The  Cincinnati,  etc.,  R.  R.  Co.  v.  Har- 

gent,  23  Me.  269;  Lewis  v.  St.  Albans  ris,  61  Ind.  290;  Hardwick  v.  Wilson, 

Iron  and  Steel  Works,  5  Vt.  477.  40  Ind.  321 ;  Clark  v.  Lineberger,  44 

(r)  R.  S.   1881,  \  1285;    Roberts  v.  Ind.  223 ;  Keller  v.  Boatman,  49  Ind. 

Nodwift,  8  Ind.  339;    Brock  v.  Par-  104. 


222  JOINDER  OF  CAUSES  OF  ACTION.  [CHAP. 

It  is  not  necessary,  however,  that  the  two  causes  of  action  should  be 
of  the  same  nature.  An  action  upon  a  special  contract  may  be  joined 
with  one  upon  an  account." 

• 

328.  Statute  liberally  construed.— In   actions   on  money  de- 
mands on  contract,  the  supreme  court  has  been  very  liberal  in  permit- 
ting the  joinder  of  causes.     In  the  case  of  the  Southside  Planing  Mill 
Association  v.  The  Cutler  &  Savidge  Lumber  Co.,  64  Ind.  560,  the 
association  had  purchased  certain  real  estate  from  one  Wheatley,  and 
as  part  of  the  consideration  assumed  and  agreed  to  pay  certain  notes 
given  by  Wheatley  to  other  parties.     A  bond  was  also  given  by  the 
association,  with  sureties  conditioned  for  the  payment  of  the  notes. 
The  appellee  was  the  holder  of  one  of  the  notes  of  Wheatley,  assumed 
by  the  association.    The  note  was  not  paid  at  maturity,  and  the  action 
was  brought  by  the  holder  of  the  note  against  Wheatley,  the  maker, 
and  certain  indorsers,  the  association  and  her  sureties  on  the  bond  to 
recover  on  the  note  and  bond  in  the  same  action.    There  was  a  demur- 
rer to  the  complaint,  on  the  grounds  that  the  complaint  did  not  state 
facts  sufficient,  and  that  two  causes  of  action  were  improperly  joined. 
It  was  held  that  the  payee  of  the  note  had  the  right  to  sue  all  of  the 
makers  and  indorsers  of  the  note  and  the  principal  and  sureties  on  the 
bond  in  the  same  action.     This  may  be  regarded  as  a  very  strong  case, 
but  it  is  very  clearly  within  both  the  letter  and  spirit  of  the  code, 
which,  as  we  have  seen,  authorizes  different  judgments  to  be  rendered 
against  different  defendants.7    There  was  Teally  but  one  cause  of  action. 
Each  of  the  parties  was  liable  for  the  same  debt ;  but  by  virtue  of  dif- 
ferent instruments  of  writing.     The  rights  of  the  parties  could  be  prop- 
erly adjusted  by  the  judgment.1" 

329.  Difference   between   our   code   and  those  of   other 
states. — The  first  subdivision  of  this  section  of  the  code  differs  mate- 
rially from  that  of  the  codes  of  other  states.     The  right  to  join  is  lim- 
ited to  money  demands  on  contract,  while  the  codes  of  other  states  au- 
thorize the  joinder  of  several  causes  of  action,  "  where  they  all  arise 
out  of  contracts,  express  or  implied. "x    This  would   authorize   the 
joinder  of  different  causes  of  action,  whether  the  relief  demanded  was 
for  money  or  for  specific  relief. 

This  is  not  permitted  in  this  state,  the  express  terms  of  the  statute 
being  against  it. 

(u)  Bates  v.  Dehaven,  10  Ind.  319;  (w)  Ante,  §  121;  Pate  v.  The  First 
Wilstach  v.  Hawkins,  14  Ind.  541.  Nat.  Bankof  Aurora.  63  Ind.  254. 

(v)  Ante,  \\  97,  116,  121.  (x)  Bliss'  Code  PI.,  §  127. 


XI.]  JOINDER  OF  CAUSES   OF  ACTION.  223 

There  is,  however,  another  section  bearing  on  the  subject,  which 
provides:  "  When  the  plaintiff  desires  to» recover  the  possession  of  title 
papers,  or  other  instruments  of  writing,  or  correct  any  mistakes 
therein,  a  separate  action  may  be  brought  therefor  ;  or  the  possession 
of  such  title  papers,  or  other  instruments  of  writing,  may  be  recovered, 
or  mistakes  corrected  in  any  other  action,  when  such  recovery  or  correc- 
tion would  be  essential  to  a  complete  remedy.  "y 

330.  In  equity  the  causes  authorized  by  section  279  to  be 
joined  were  treated  as  one  cause  of  action. — Under  the  prac- 
tice in  equity,  the  causes  of  action  authorized  by  this  section  to  be 
joined  with  others  were  not  looked  upon  as  distinct  causes  of  action. 
The  same  joinder  was  permitted,  but  upon  the  ground  that  they  were 
a  part  of  the  cause  of  action  with  which  they  were  connected,  and  nec- 
essary to  the  plaintiff's  recovery.2 

In  Indiana  they  are  properly  joined  by  virtue  of  the  statute,  which 
authorizes  the  joinder,  but  recognizes  them  as  distinct  causes  of  action, 
by  providing  that  in  the  cases  named  the  action  may  be  brought  alone.8 

331.  Actions  against  husband  and  wife. — In  Tobin  v.  Con- 
ney,  13  Ind.  65,  the  action  was  against  husband  and  wife  for  the  occu- 
pation of  real  estate.   The  wife  had  occupied  the  land  before  marriage, 
and  after  marriage  she  and  her  husband  had  continued  in  possession. 
It  was  held  that  for  the  time  occupied  by  the  wife  alone  the  judgment 
must  be  against  her  separate  property,  and  for  the  time  occupied  after 
the  marriage  the  husband  alone  was  liable,  and  therefore  there  was 
both  a  misjoinder  of  causes  of  action  and  of  parties. 

332.  Guarantor  can  not  be  joined  with  maker  of  note. — 
Guarantors  of  a  promissory  note  can  not  be  sued  jointly  with  the 
makers.     Their  promise  is  a  separate  and  distinct  contract  from  that 
of  the  makers,  and  the  cause  of  action  is  different.1" 

INJURY    TO    PROPERTY. 

333.  Construction  of  the  statute. — The  second  subdivision  of 
the  section  authorizes  the  joinder  of  causes  of  action  for  "injuries  to 
property."    In  most  of  the  states  both  causes  of  action  for  injuries  to 

(y)  R.  S.  1881,  §279.  39  Ind.  318;  Monroe  v.  Skelton,  36 

(z)  Bliss  on  Code  PI.,  §  116;  Pom.  Ind.  302;  Conger  v.  Parker,  29  Ind.  380. 

Rem.,  §  459  (b)  Cole  v.  The  Merchants'  Bank, 

(a)  Biggsbee  v.  Trees,  21  Ind.  227;  60  Ind.  350;  Rich  wine  v.  Scovill,  54 

Hunter  v.  McCoy,  14  Ind.  528;  Miller  Ind.  150;  ante,  §  122. 

v.  Kolb,  47  Ind.  220;   Free  v.  Meikel, 


224  JOINDER   OF   CAUSES   OF   ACTION.  [CHAP. 

person,  property,  and  character  may  be  joined,  but  this  is  not  true  in 
Indiana,  as  they  are  divided  into  distinct  classes,  injuries  to  person  and 
character  being  joined  in  one  class.  The  terms  of  the  statute  include 
injuries  to  both  real  and  personal  property,  but  where  the  two  causes 
of  action  require  different  places  of  trial,  as  will  frequently  happen, 
the  place  of  residence  of  the  defendant  fixing  the  venue  in  case  of  in- 
jury to  personal  property,  and  the  place  where  the  land  is  situate,  iu 
case  of  injury  to  real  property,  they  should  not  be  joined. 

INJURIES   TO   PERSON   AND   CHARACTER. 

334.  What  included  in  this  class. — The  third  subdivision  au- 
thorizes the  joinder  of  injuries  to  person  and  character,  and  includes 
every  form  of  action  for  such  an  injury.     In  some  of  the  codes,  slan- 
der and  malicious  prosecution  are  distinguished  from  other  injuries  to 
person  and  character,  and  can  not  be  joined.0 

It  is  said  by  Mr.  Bliss  that  "  causes  of  action  for  assault  and  battery ; 
for  false  imprisonment;  for  trespass  upon  land;  for  an  injury  to  per- 
sonal property;  for  conversion  of  such  property,  where  the  relief  is  in 
damages ;  for  nuisances ;  for  all  kinds  of  negligence  in  the  performance 
of  a  duty,  either  by  the  defendant  or  his  servants ;  for  criminal  con- 
versation ;  for  enticing  a  child  or  servant,  or  enticing  or  harboring  a 
wife ;  for  seduction  of  a  servant  or  daughter  ;  for  fraud  and  deceit  in 
sales,  in  false  recommendations,"  etc.,  may  be  joined  in  the  same 
action. 

In  this  state,  slander  and  malicious  prosecution  may  also  be  joined 
with  the  actions  enumerated  by  the  author;  but  injuries  to  personal 
property,  as  I  have  shown,  belong  to  another  class,  and  actions  for  the 
conversion  of  property,  where  the  relief  is  in  damages,  should,  if  the 
action  is  for  damages  alone,  be  brought  under  subdivision  second.  If 
the  action  is  to  recover  possession,  it  must  be  under  the  fourth,  and  the 
action  for  damages  may  be  joined  in  the  same  complaint ;  but  actions 
for  injuries  to  property  can  not  be  joined  with  those  for  injury  to  person 
or  character. 

335.  Injuries  growing  out  of  the  same  wrong  can  not  al- 
ways be  joined. — It  does  not  follow  from  the  fact  that  the  injuries 
complained  of  grow  out  of  the  same  wrongful  act  that  they  can  prop- 
erly be  joined. 

In  the  Cincinnati,  Hamilton  and  Dayton  R.  R.  Co.  v.  Chester,  57 
Ind.  297,  the  action  was  brought  by  the  appellee  to  recover  damages 

(c)  Bliss'  Code  PI.,  §  129. 


XI.]  JOINDER   OF   CAUSES  OF  ACTION.  225 

for  personal  injuries  inflicted  upon  himself,  his  wife,  and  minor  child, 
and  for  the  death  of  his  minor  child,  caused  by  the  same  negligent 
act.  It  was  held  that  the  injuries  to  the  appellee,  his  wife,  and  minor 
child,  being  caused  by  the  same  act,  constituted  but  one  cause  of  ac- 
tion, and  might  be  joined  not  only  in  the  same  complaint,  but  in  the 
same  paragraph ;  but  that  the  injury  causing  the  death  of  his  child 
could  not  be  joined  with  the  other  causes  of  action.  This  was  held  on 
the  ground  that  the  damages  recovered  for  the  injuries  not  causing 
death  accrued  to  the  appellee,  while  the  damages  for  the  death  of  the 
child  must-  inure  to  the  benefit  of  the  next  of  kin  to  the  child.  The 
court  say:  "Even  if  these  two  causes  of  action  had  been  stated  in 
separate  paragraphs,  we  think  that  they  ought  not  to  have  been  united 
in  the  same  complaint,  or  in  the  same  action.  For  the  one  paragraph 
would  have  stated  a  cause  of  action  in  favor  of  the  appellee  in  his  own 
right,  while  the  other  paragraph  would  have  stated  a  cause  of  action 
in  the  appellee's  favor,  but  for  the  benefit  of  the  next  of  kin  of  his  de- 
ceased child,  Emory  B.  Chester."  d 

336.  Causes  of  action  must  inure  to  plaintiff  in  the  same 
right. — In  every  case,  to  authorize  the  joinder  of  causes  of  action  be- 
longing to  the  same  class,  the  several  causes  of  action  must  inure  to 
the  plaintiff  in  the  same  right,  and  where  the  action  is  against  different 
defendants,  their  liability  must  grow  out  of  the  same  general  right  of 
the  plaintiff.     They  need  not  be  liable  in  the  same  way,  and  to  the 
same  extent,  but  the  same  general  cause  of  action  must  include  them 
all.e 

337.  Damages  to  real  estate ;  when  can  be  joined  with 
action  to  recover  possession. — The  subdivision  of  the  statute  au- 
thorizing the  joinder  of  "  claims  to  recover  the  possession  of  real  prop- 
erty, with  or  without  damages,  rents,  and  profits;   for  withholding 
thereof,  and  for  waste  or  damage  done  to  the  lands ;  to  make  partition 
thereof,  and  to  determine  and  quiet  the  title  to  real  property,"  would 
seem  to  be  broad  enough  in  its  terms  to  include  damages  for  all  kinds 
of  injuries  to  the  real  estate,  but  the  supreme  court  has  held  otherwise/ 

In  Woodruffs.  Garner  it  was  held  that  in  an  action  to  recover  the 
'  possession  of  real  estate,  mesne  profits  might  be  recovered,  but  dam- 
ages for  an  injury  to  the  freehold  could  not.     The  court  say :  "  Mesne 

(d)   B.S.  1881,  ?§  264,  284;  The  Pitts-        (e)  Pom.    Rein.,  $  479,  480;    Bliss' 

burgh,  etc.,  R.  R.  Co.  v.  Vinnig's  Adm'r,  Code  PL.  §  123. 

27  Ind.  513;  ante,  §  65.  (f )  Woodruff  v.  Garner,  27  Ind.  4. 

15 


226  JOINDER   OF   CAUSES    OF   ACTION.  [CHAP. 

profits  may  be  recovered  as  damages  in  an  action  for  the  recovery  of 
possession.  .  .  .  But  the  claim  for  damages  for  injury  to  the  free- 
hold is  not  incident  to  the  subject-matter,  and  indeed  could  not  have 
been  properly  joined  with  it  in  the  same  suit."  If  the  court  is  right 
in  this  construction  of  the  statute,  only  such  damages  can  be  recovered 
in  connection  with  the  action  to  recover  possession  as  are  incident  to 
such  suit,  and  all  other  actions  for  damages  belong  to  subdivision 
second.8  But  this  subdivision  was  so  amended  in  1881  as  to  authorize 
a  recovery  for  "  waste  or  damage  done  to  the  land."  The  language 
is  broad  enough  to  include  every  damage  done  to  the  land  by  the  party 
wrongfully  in  possession.  The  authorities  cited  are  not  the  law,  there- 
fore, under  the  present  code. 

338.  Actions  for  specific  performance,  and  to  avoid  con- 
tracts  for   fraud    and    mistake. — Under   the   sixth   subdivision, 
"claims  to  enforce  the  specific  performance  of  contracts,  and  to  avoid 
contracts  for  fraud  or  mistake,  may  be  joined." 

And  it  has  been  held  that,  in  a  suit  for  the  correction  of  a  mistake 
in  a  deed,  the  additional  remedy  of  quieting  the  title  to  the  real  estate 
may  be  had.h 

339.  To  recover  purchase-money,  and  for  sale  of  real  es- 
tate.— The  statute  also  provides  that,  in  any  action  brought  for  the 
recovery  of  the  purchase- money,  against  any  person  holding  a  contract 
for  the  purchase  of  lands,  the  party  bound  to  perform  the  contract,  if 
not  plaintiff,  may  be  made  a  party,  and  the  court,  in  the  final  judg- 
ment, may  order  the  interest  of  the  purchaser  to  be  sold  or  transferred 
to  the  plaintiff,  upon  such  terms  as  may  be  just,  and  may  also  order  a 
specific  performance  of  the  contract  in  favor  of  the  complainant,  or  the 
purchaser,  in  case  a  sale  be  ordered.1 

340.  Actions  for  partition  and  to  enforce  lien  on  same  real 
estate  can  not  be  joined. — The  seventh  subdivision,  after  stating 
the  several  causes  of  action  that  may  be  joined,  has  a  general  clause 
authorizing  the  joinder  of  "  all  other  causes  of  action  arising  out  of  a 
contract  or  a  duty  not  fatting  utithin  either  of  the  foregoing  classes." 

But  they  must  affect  all  the  parties  to  the  action,  and  not  require 
different  places  of  trial. 

(g)  See  Burrows  v.  Holderman,  31  (h)  R.  S.  1881,  $278;  Hunter  v.  Mc- 
Ind.  412.  Coy,  14  Ind.  528. 

(i)  K.  S.  1881,  §  275. 


XI.]  JOINDER  OF   CAUSES   OF   ACTION.  227 

This  section  does  not  authorize  the  joinder  of  an  action  for  partition 
with  one  to  enforce  a  lien  upon  the  real  estate  sought  to  be  partitioned.' 

The  case  cited  does  not  expressly  decide  the  point,  but  intimates 
what  the  rule  should  be.  There  should  have  been  no  hesitancy  on  the 
part  of  the  court  in  deciding  that  the  causes  were  improperly  joined. 
The  action  for  partition  belongs  to  the  class  named  in  subdivision  five, 
and  the  one  to  enforce  the  lien  to  the  class  of  subdivision  seven. 

(j)  Kennick  v.  Chandler,  59  Ind.  354. 


228 


PLEADINGS — THE    COMPLAINT. 


[CHAP. 


CHAPTER  XII. 


PLEADINGS— THE  COMPLAINT. 


SECTION. 

341.  Effect  of  the  code  on  common-law 

and  equity  rules  of  pleading. 

342.  The  statute. 

343.  Objections  to  the  system  consid- 

ered. 

THE   COMPLAINT — GENERAL   RULES. 

344.  The  statute. 

345.  Musfceontain  the  title  of  the  cause. 

346.  Conclusions  of   law  must  not  be 

plended. 

347.  Neither  presumptions  of  law  nor 

matters  of  which  judicial  notice 
will  be  taken  need  be  stated  in 
pleading. 

348.  Of  what  the  courts  will  take  ju- 

dicial notice. 

349.  Of  what  the  courts  will  not  take 

judicial  notice. 

350.  Comments  on  the  decided  cases. 

351.  Complaint   need   not   be   in   any 

particular  form. 

352.  Evidence  should  not  be  pleaded. 

353.  Facts  must  be  stated  positively. 

354.  Complaint    must   show   cause   of 

action  in  all  who  unite  as 
plaintiffs. 

355.  Where  complaint  may  be  for  tort 

or  upon  contract;  election. 

356.  Every  substantial  fact  necessary 

to  constitute  a  cause  of  action 
must  be  alleged. 

357.  When   it   is   necessary   to   plead 

matter  of  inducement. 
3-38.  Matter   of    aggravation    may   be 
pleaded. 

359.  Privity  of  contract  need  not  be 

shown  under  the  code. . 

360.  Fictions  must  not  be  pleaded. 


SECTION. 

361.  Defense  should  not  be  anticipated. 

EXCEPTIONS    TO    RULE   THAT   DEFENSE 
MUST   NOT   BE   ANTICIPATED. 

362.  Negligence. 

363.  Non-payment. 

STATUTORY   RIGHTS. 

364.  Facts  must  be  stated. 

365.  Exceptions  in  the  statute..    • 

366.  Statute  of  frauds. 

367.  Statute  of  limitations. 

CAPACITY   TO   SUB. 

368.  In  actions  by  executors  or  admin- 

istrators, their  capacity  to  sue 
need  not  be  alleged. 

369.  The  rule  in  actions  by  guardians. 

370.  In  actions  by  foreign  guardians, 

right  to  sue  must  be  shown. 

371.  In  actions  by  or  against  corpora- 

tions, facts  showing  corporate 
existence  need  not  be  pleaded. 

SURPLUSAGE. 

372.  What  is  surplusage. 

373.  What  is  material  in  a  complaint. 

374.  Effect  of  too   great  particularity 

of  averment. 

DUPLICITY. 

375.  What  will  amount  to  duplicity. 

376.  Several  causes  of  action  ma}r  be 

stated  in  the  same  complaint  in 
different  paragraphs,  numbered. 

377.  Where   there  are   two  causes  of 

action,  and  but  one  relief,  causes 
should  be  stated  in  separate 
paragraphs. 


XII.] 


PLEADINGS — THE    COMPLAINT. 


229 


378.  The  same  cause  of  action  may  be 

differently   stated    in    different 
paragraphs. 

379.  Inconsistent  causes  of  action  may 
«        be  joined. 

380.  One  cause  of  action  should  not  be 

divided  up  and  set  out  in  differ- 
ent paragraphs. 

381.  In    suing    on    a    bond,     several 

breaches  may  be  alleged  in  the 
same  paragraph. 

382.  Action  on  mortgage  securing  sev- 

eral notes. 

383.  Each   paragraph    must   be  good 

within  itself. 


CERTAINTY. 

384.  The  complaint  should  be  certain. 

385.  Certaintv^s  to  time. 

386.  Certain^H^  applied  to  place. 

387.  ComplaiiKieed  not  allege  a  de- 

mand at  any  particular  place  in 
actions  on  bills  and  notes. 

388.  Certainty  required  in  averments 

of  subject-matter. 

CERTAINTY   OF    DESCRIPTION. 

389.  Of  personal  property. 

390.  In  actions  relating  to  real  estate. 

391.  Monuments  control  distances. 

392.  In  actions   for  specific   perform- 

ance of  contracts  to  convey  real 
estate. 

393.  In  actions  to  enforce  mechanics' 

liens. 


FRAUD. 

401.  Facts  constituting  the  fraud  must 

be  stated.  „ 

CONSIDERATION. 

402.  When    a   consideration   must  be 

alleged. 

403.  Facts  showing  consideration  must 

be  pleaded. 

TITLE. 

404.  The  complaint  must  show  title. 

405.  Title  to  real  property  ;  actions  to 

recover  real  estate. 

406.  Can  not  allege  a  legal  and  recover 

on  an  equitable  title. 

407.  Possession    may  be  recovered  on 

an  equitable  title. 

408.  Where  ownership  is  alleged  gen- 

erally, can  the  plaintiff  recover 
on  proof  of  an  equitable  title? 

409.  Complaint  need  not  show  title  in 

action  by  landlord  against  ten- 
ant for  possession. 

410.  In  actions   for  forfeiture  for  the 

failure  of  condition  subsequent. 

411.  For  trespass  on  land. 

412.  To  recover  personal  property. 

413.  In  actions  on  promissory  notes. 

IN  ACTIONS  OTHER  THAN  FOR  MONEY 
OR  SPECIFIC  PROPERTY,  THK  COM- 
PLAINT MUST  SHOW  THAT  THERE 
IS  NO  OTHER  ADEQUATE  REMEDY. 

414.  Kule  not  changed  by  the  code. 


EXCEPTIONS   TO   COMMON-LAW    RULES 
AS    TO    CERTAINTY 

394.  Conditions  precedent. 

395.  The  section  does  not  apply  to  al- 

legations of  excuse  for  non-per- 
formance of  conditions. 

396.  Private  statutes. 

397.  Actions  for  libel  and  slander. 

398.  On  judgments. 

399.  In  actions  to  contest  wills. 

400.  Negligence. 


IN  ACTIONS  FOUNDED  ON  WRITTEN  IN- 
STRUMENT, THE  ORIGINAL  OR  A 
COPY  MUST  BE  FILED  WITH  AND 
MADE  A  PART  OF  THE  COMPLAINT. 

415.  The  statute. 

416.  Exhibits    control    averments    in 
pleading. 

417.  What    is    a   written    instrument 

within  the  meaning  of  the  sec- 
tion. 

418.  When  the  written  instrument  is 

the  "  foundation  of  the  action." 


230 


PLEADINGS — THE    COMPLAINT. 


[CHAP. 


419.  Must   be   referred   to   and   made 

part  r-f  the  pleading. 

420.  Written  instrument,  not  the  foun- 

dation of  the  action,  can  not  aid 
the  pleading. 

421.  Contract    not    alleged    to    be   in 

writing   conclusively  presumed 
to  be  verbal. 

422.  The  same  copy  may  be  referred 

to    and    made    part    of    every 
pleading  in  the  case. 

ACTIONS  AGAINST    HEIRS  FOR  DEBTS  OF 
ANCESTORS. 

423.  What  complaint  must  show. 

DEMAND    FOR   RELIEF. 

424.  The  complaint   should  contain  a 

prayer  for  relief. 

425.  Prayer  can  not  enlarge,  but  may 

diminish,  cause  of  action. 


42G.  Complaint    must    be   signed    by 
plaintiff  or  his  attorney. 

427.  Cross-complaint. 

WHEN    COMPLAINT     SHOULD     BE    VERI- 
FIED. 

428.  Only  necessary,  as  a  rule,  where 

ext.  aordinary  relief  is  demanded. 

429.  In  replevin. 
480.  Injunction. 

431.  Mandate  and 'prohibition. 

432.  Attachment. 

433.  Arrest  and  bail. 

434.  To  review  judgment. 

435.  Execution  against  the  body. 

436.  Proceedings     supplementary     to 

execution. 

437.  Proceedings  to  revive  judgments. 

438.  Ne  exeat. 

439.  Habeas  corpus.    . 

440.  Proceedings  to  contest  wills. 

441.  Applications  to  set  aside  default. 

442.  Complaint  for  new  trial. 


341.  Effect  of  the  code  on  common-law  and  equity  rules 
of  pleading. — The  effect  of  the  code,  as  it  affects  the  question  of  par- 
ties, has  been  considered.  The  changes  made  were  many  and  impor- 
tant ;  but  the  most  radical  changes  are  found  in  the  form  and  manner 
of  pleading  under  the  code. 

At  common  law,  actions  were  divided  into  separate  and  distinct 
classes,  each  of  which  was  distinguished,  in  pleading,  by  arbitrary 
forms  that  must  be  strictly  adhered  to  or  the  plaintiff  must  fail  in  his 
action.8 

In  equity  the  rule  was  different.  The  sufficiency  of  the  bill  did  not 
depend  upon  any  technical  use  of  words  or  phrases.  It  was  in  the  nar- 
rative form,  and  must  contain  a  statement  of  the  facts  upon  which  the 
right  to  relief  was  predicated.11 

In  common-law  actions,  a  failure  to  prove  any  of  the  issuable  facts 
presented  by  the  pleadings  was  fatal  to  the  action.  In  equity  such 
failure  might  result  in  total  or  only  partial  defeat. 

It  was  the  boast  of  the  common-law  system  of  pleading  that  it  re- 
sulted in  a  single  issue.  The  failure  to  prove  any  fact  necessary  to  sus- 
tain this  issue  must  therefore  result  in  total  defeat. 


(a)  Bliss'    Code 
Kem.,  §  509. 


PI.,   §   139;    Pom. 


(b)  Story's  Eq.  PI.,  §§26,27;  Pom. 
Rem.,  §521. 


XII.]  PLEADINGS — THE    COMPLAINT.  231 

In  equity  great  prolixity  was  necessary,  because  every  fact,  upon 
which  the  relief  sought  depended,  must  be  stated;  and  no  fact,  not 
stated  could  be  proved,  however  important  to  the  right  of  recovery.6 

Mr.  Story,  in  his  Equity  Pleading,  says:  "It  may  be  proper,  how- 
ever, to  remark  that  every  material  fact,  to  which  the  plaintiff  means 
to  offer  evidence,  ought  to  be  distinctly  stated  in  the  premises ;  for, 
otherwise,  he  will  not  be  permitted  to  offer  or  require  any  evidence  of 
such  fact,"  d 

The  pleading  in  this  form  must,  therefore,  have  been  drawn  with 
much  care  and  nicety,  as  the  right  to  prove  any  material  fact  depended 
upon  its  being  alleged  in  the  bill.  But  the  result  of  a  failure  to  prove 
such  facts  as  were  alleged  did  not,  as  at  common  law,  deprive  the 
party  of  all  right  to  relief.  If  enough  of  the  facts  pleaded  were 
proved  to  entitle  him  to  any  part  of  the  relief  demanded,  to  that  ex- 
tent he  was  entitled  to  recover.6 

These  two  systems  of  pleading  were,  at  the  time  of  the  enactment 
of  the  code,  separate  and  distinct.  They  were  separated  by  well- 
defined  lines,  that  could  not  be  crossed  in  the  administration  of  justice. 
If  a  party  complaining  appealed  to  the  equity  side  of  the  court,  and 
his  remedy  should  be  at  common  law,  he  must  go  out  of  court,  no  mat- 
ter how  meritorious  his  cause  of  action.  The  result  was  the  same 
where  the  action  was  brought  as  a  comnyra-law  action  and  the  relief  to 
which  he  was  entitled  proved  to  be  equitable. 

The  result  of  the  code  has  been  to  obliterate  these  lines  of  distinc- 
tion, so  far  as  the  rules  of  practice  and  pleading  are  concerned,  and  to 
consolidate  the  common  law  and  equitable  causes  of  action  into  one  to 
be  denominated  a  "  civil  action." f 

The  manner  in  which  the  cause  of  action  must  be  stated  partakes 
more  of  the  equitable  than  the  common-law  system,  but  it  is  not  gov- 
erned by  either.  To  determine  what  must  be  contained  in  the  com- 
plaint or  other  pleading,  resort  must  be  had  to  the  statute. 

342.  The  statute. — "  The  pleadings  are  formal  allegations  by  the 

(c)  Story's  Eq.  PI.,  §  28.  Hare,  264,  266;    Peacock   v.  Terry,  9 

(d)  Citing  Irnham  v.  Child,  1  Bro.     Ga.  148. 

Ch.    94;    Gilb.    For.    Rom.  91,    218;  (e)  Pom.  Kem.,  §  527. 

Wilkes  v.  Rogers,  6  Johns  566;  Gor-  (f)  R.  S.  1881,  §  249;  ante,  §§  176, 

don  v.Gordon,  3  Swanst  472;  Sidney  177;   Scott  v.  Crawford,  12  Ind.  410; 

v.  Sidney,  3  P.  Wms.  276;  Watkyns  v.  The  Indiana,  etc.,  R.  R.  Co.  v.  "SVill- 

Watkyns,  2  Atk.  96;  Whaley  v.  Nor-  iams,  22  Ind.  198;  Ewing  v.  Ewinsr,  '24 

ton,  1  Vern.  483;  Clarke  v.  Turton,  11  Ind.   468;    Troost  v.    Davis,    31    Ind. 

Ves.   240;    Houghton    v.    Reynolds,   2  34,  38. 


232  PLEADINGS — THE    COMPLAINT.  [CHAP. 

parties  of  their  respective  claims  and  defenses  for  the  judgment  of  the 
court,  "s 

"All  the  distinct  forms  of  pleading  heretofore  existing  inconsistent 
with  the  provisions  of  this  act  are  hereby  abolished,  and  hereafter  the 
forms  of  pleading  in  civil  actions  in  courts  of  record,  and  the  rules  by 
which  the  sufficiency  of  the  pleadings  is  to  be  determined,  are  modified, 
as  prescribed  by  this  act."  h 

I  attempted  to  show,  in  a  former  chapter,  that  the  changes  made  by 
the  code  do  not  affect  the  rights  of  parties  or  the  remedies  formerly 
given  for  a  violation  of  those  rights ;  but  affect  alone  the  form  of  action, 
or  the  means  by  which  the  remedy  may  be  obtained.' 

The  distinctions  between  the  remedies  recognized  by  courts  of  law 
and  equity  are  clearly  defined,  and  are  recognized  and  enforced  under 
the  code.-"  But  the  means  by  which  the  different  remedies  may  be  ob- 
tained are  the  same  as  a  rule  of  pleading.  The  facts  stated  in  the 
pleading  determine  the  right  and  the  remedy.  If  the  right  calls  for  a 
legal  remedy,  as  shown  by  the  facts  pleaded,  the  legal  remedy  will  be 
given.  If  the  remedy  must  be  equitable  under  the  facts,  an  equitable 
remedy  is  administered.  The  great  difference  between  the  new  system 
and  the  old  is  that  a  party  is  entitled  to  just  such  relief  as  the  facts 
pleaded  and  proved  entitle  him,  and  the  fact  that  he  conceives  that  his 
relief  must  be  equitable,  and  j>rays  for  such  relief,  does  not  affect  his 
rights.  The  court  must  grant  such  relief  as  the  facts  pleaded  call  for, 
whether  legal  or  equitable,  notwithstanding  the  party  may  have  mis- 
taken his  rights  and  asked  for  another  and  different  remedy,  that  under 
the  old  system  could  not  be  granted. k 

Both  legal  and  equitable  causes  of  action  may  be  joined  under  the 
code,  as  I  have  shown  in  the  chapter  on  Joinder  of  Causes  of  Action.1 
The  fact  that  they  were,  under  the  old  system,  different  causes  of  ac- 
tion, calling  for  different  kinds  of  relief,  does  not  in  any  way  affect 
the  question  of  joinder.  If  they  grow  out  of  the  same  general  right, 
they  are  in  fact  one  under  the  code,  included  within  the  term  civil 
action. 

343.  Objections  to  the  system  considered. — With  those  of 
the  profession  who  practiced  under  the  old  system  the  code  was  a  severe 

(g)  R.  S.  1881,  §  835.  -burn,  25  Ind.  259;  Godall  v.  Mopley, 

(h)  R.  S.  1881,  §  336.  45  Ind.  355,  359;  Baker  v.  Armstrong, 

(i)  Ante,  §  177.  57  Ind.  189;  Kern  v.  Hazelrig,  11  Ind. 

(j)  Pom.  Kern.,  §  36.  443;  Sohn  v.  The  Marion,  etc.,  Gravel 
(k)  Bennett  v.  Preston,  17  Ind.  291 ;  Road  Co.,  73  Ind.  77. 

Lowry  v.  Dutton,   28   Ind.  473;    The         (1)  Ante,  §  311  et  seq. 

Cincinnati,    etc.,  R.  R.   Co.  v.  Wash- 


XH.]  PLEADINGS — THE     COMPLAINT.  233 

shock.  It  made  it  necessary  for  them  to  unlearn  what  they  had 
learned  and  begin  anew.  With  them  the  common  law  was  a  great 
science;  the  distinctions  between  the  common  law  and  equity  prac- 
tice and  pleading  could  not  be  obliterated  by  u  mere  statutory  en- 
actment, and  the  pleadings  under  the  code  were  without  form.  This 
feeling  of  hostility  against  the  code  has  grown  less  with  time,  but  there 
are  some  remnants  of  it  remaining  in  this  state.  It  is  still  claimed, 
not  only  by  lawyers,  but  by  some  legal  writers,  that  the  rules  of  plead- 
ing, as  they  existed  under  the  old  system,  are  not  obliterated."1  This 
is  true  as  to  some  of  the  old  rules  of  pleading,  but  not  as  to  others. 
The  object  of  the  code  is  to  simplify  the  rules  of  practice  and  pleading. 
If  the  old  rules  were  to  be  followed,  the  purpose  and  object  of  the  code 
would  be  entirely  frustrated. 

If  any  confusion  has  grown  up  out  of  the  new  system,  it  is  not  the 
fault  of  the  code.  Why  should  any  confusion  grow  out  of  the  require- 
ment that  the  pleading  shall  contain  "  a  statement  of  the  facts  constituting 
the  cause  of  action,  in  plain  and  concise,  language,  without  repetition  "  save- 
in  the  mind  of  a  pleader,  who  has  been  accustomed,  under  the  com- 
mon-law system,  to  say  one  thing  when  he  means  another,  and  in  a 
kind  of  technical  language  that  no  one  but  himself  and  other  common- 
law  pleaders  could  understand  ? 

The  confusion  has  not  grown  out  of  any  want  of  conciseness  and 
simplicity  in  the  code,  so  much  as  the  determination  of  members  of  the 
profession  and  the  bench,  to  hold  on  to  the  old  systems  and  rules  of  plead- 
ing in  defiance  of  its  express  terms.  The  courts  have  grown  more  lib- 
eral as  time  passed,  and,  here  and  there,  cases  that  failed  to  give  full 
force  to  the  code,  are  being  overruled,  doubted,  and  criticised,  while 
others  have  not,  only  because  the  questions  have  not  been  again  presented. 
The  result  is,  that  some  parts  of  the  code  are  liberally  construed,  so  as 
to  carry  out  the'  intention  of  its  framers,  while  other  parts  have  been 
so  strictly  construed  as  to  destroy  their  force,  thus  in  some  measure 
destroying  the  harmony  of  the  entire  system.  Instead  of  breaking 
loose  from  the  two  old  systems,  and  accepting  the  plain  terms  and 
meaning  of  the  code,  we  are  still  clinging  to  these  old  rules  of  plead- 
ing and  practice,  thus  blending  the  new  and  the  old  together,  making 
confusion  inevitable." 

THE  COMPLAINT — GENERAL  RULES. 

344.  The  statute. — "The  first  .pleading,  on  the  part  of  the 
plaintiff,  is  the  complaint.  The  complaint  shall  contain  : 

(m)  Iglehart's  Pr.  and  PI.,  p.  2,  ?  6.         (n)  Judah  v.  The  Trustees  of  Vin- 

cetincs  University.  23  Ind.  273,  280. 


234  PLEADINGS — THE    COMPLAINT.  [CHAP. 

"  First.  The  title  of  the  cause,  specifying  the  name  of  the  court  and 
county  in  which  the  action  is  brought,  and  the  names  of  the  parties  to 
the  action,  plaintiff  and  defendant. 

"  Second.  A  statement  of  the  facts  constituting  the  cause  of  action, 
in  plain  and  concise  language,  without  repetition,  and  in  such  manner 
as  to  enable  a  person  of  common  understanding  to  know  what  is  in- 
tended. 

"  Third.  Where  the  complaint  contains  more  than  one  cause  of  ac- 
tion, each  shall  be  distinctly  stated  in  a  separate  paragraph  and  num- 
bered. 

"  Fourth.  A  demand  of  the  relief  to  which  the  plaintiff  may  sup- 
pose himself  entitled.  If  the  recovery  of  money  be  demanded,  the 
amount  thereof  shall  be  stated. "°(1) 

345.  Must  contain  the  title  of  the  cause. — That  the  title  of 
the  cause  shall  be  given,  is  as  imperatively  required  by  the  terms  of 
the  statute  as  any  other  part  of  the  complaint,  but  it  is  one  that  is  not 
always  complied  with.     The  good  pleader  Avill  comply  with  every  re- 
quirement of  the  statute,  whether  the  failure  to  do  so  will  subject  his 
complaint  to  demurrer  or  not.     As  a  rule,  the  failure  to  give  the  title 
of  the  cause  will  not  render  the  complaint  bad  on  demurrer  where  the 
facts  contained  in  the  complaint  supply  the  omission. p 

But  the  title  to  the  cause  sometimes  supplies  a  defect  in  the  com- 
plaint that  would  otherwise  render  it  bad  on  demurrer. q 

In  giving  the  title  of  the  cause,  the  names  of  the  parties  should  be 
fully  and  correctly  stated.  In  actions  by  and  against  partners  the 
names  of  the  individual  members  must  be  given.  It  is  not  sufficient 
to  give  the  firm  name.  (2) 

Corporations  may  sue  and  be  sued  in  their  corporate  names. 

Church  organizations  must  sue  in  the  name  of  the  "  Wardens  and 

Vestrymen  of Church, ,"  or  in  the  name  of  the  "  Trustees 

of— Church, 

346.  Conclusions  of  law  must  not  be  pleaded. — The  com- 
plaint must  contain  the  facts  constituting  the  cause  of  action.     The 
lacts  must  not  be  confounded  with  the  evidence  by  which  the  facts  are 
to  be  proved.     It  is  never  proper  to  allege  matters  of  evidence,  the 

(0)  R.  S.I  881,  ?  338.  218;     Hays    v.    Lanier,   3    Blkf.   322. 
(p)  Ammerman  v.  Crosby,  26  Intl.         (q)  Lowry  v.  Dutton,  28  Ind.  473; 

451.  Brownfielcl  v.  Weicht,  9  Ind.  394. 

(1)  Forms  of  complaints,  Vol.  3,  pp.         (r)   Drumheller  v.  The  First  Univer- 
7-31 '.».  salist  Church,  4o  Ind.  275. 

(2)  Livingston  r.   Harvey,   10   Ind. 


XII.]  PLEADINGS — THE    COMPLAINT.  235 

rule   being   that  neither  evidence  nor  conclusions   of  law  shall  be 

stated.8 

347.  Neither  presumptions  of  law  nor  matters  of  which 
judicial  notice  will  be  taken  need  be  stated  in  pleading.' 

348.  Of  what  the  courts  will  take  judicial  notice. — In  a 
'ate  work  on  Practice  in  the  supreme  court,  the  question  of  what  the 
courts 'will  judicially  take  notice  is  carefully  considered,  and  the  mat- 
ters held  to  be  within  the  rule  clearly  stated." 

The  courts  of  this  state  will  take  judicial  notice  of: 

1.  The  public  statutes  of  the  state. — The  rule  extends  to  a  knowledge 
of  the  contents  of  public  statutes,  and  what  is  and  what  is  not  the  pub- 
lic law  of  the  state." 

2.  Counties,  creation  of  by  public  statute.'" 

3.  The  names  of  counties*  and  cities  and  towns  therein.* 

4.  When  a  statute  ivent  into  force. — The  supreme  court  will  take  judi- 
cial notice,  not  only  that  a  public  statute  is  in  force,  but  the  time  when 
it  took  effect.  * 

5.  School  districts. —  School  districts  are  regarded  the  same  as  coun- 
ties, being  public  corporations,  organized  under  a  public  statute.2 

6.  Existence  of  war  and  restoration  of  peace.* 

7.  Accession  of  President  of  the  United  States  and  governors  of  states.* 

8.  The  current  coins  of  tlie  country. c 

9.  Navigable  streams.'* 

(s)  Warner  v.  Hatfield,  4  Blkf.  392;  Gregg,  19  Ind.  401;  Dawson  v.  James, 

Kern  r.  Hazelrig,  11  Ind.  443;  Stone  64  Ind.  162. 

t-.  Lewman,  28  Ind.  97 ;  Clark  r.  Lin-  (x)  Whitney  v.  The  State,  35  Ind. 

enberger,  44   Ind.  223;    King   v.  The  503;  Cluck  r.  The  State,  40  Ind.  263, 

Enterprise  Ins.  Co.,  45  Ind.  43.  273;  Turbeville  v  The  State,  42  Ind. 

(t)  R.  S.  1881,  §  374;  Kern  v.  Hazel-  490;  Carr  v.  McCambell,  61  Ind.  97. 

rig,  11  Ind.  443;  Page  v.  Ford,  12  Ind.  (y)  The  State  v.  Bailey,  16  Ind.  46; 

46;    Hosier  v.  Eliasun,   14   Ind.   523;  Cordell  v.  The  State.  22  Ind.  1. 

Charleston,  etc.,  Co.  v.  Willey,  16  Ind.  (z)  Swails  v.  The  State,  4  Ind.  616. 

34;  Danville,  etc.,  Co.  ».  The  State,  16  (a)  Perkins  r.  Rogers,  35  Ind.  124. 

Ind.  456.  (b)  Hizer  r.  The  State,  12  Ind.  330. 

(u)  Buskirk's  Prao.  15.  (c)   Daily  v.  The  State.  10  Ind.  530. 

(v)  Shultz  r.  The  State,  65  Ind.  492;  (d)  Depew  v.  The  Board  of  Trustees, 

The  State  i\  The  Trustees,  etc.,  5  Ind.  etc.,  5  Ind.  8;  The  Board  of  Commr's, 

77;    Evans   v.  Browne,    30   Ind.   514;  etc-.,  r.  Pidge,  5  Ind.  13;   Neaderhouser 

Van  Dorn  v.  Bodley,  38  Ind.  402.  w..The  State,  28  Ind.  258;  Dawson  v. 

(w)  The  Board  of  Comm'rs,  etc.,  v.  James,  64  Ind.  162;   Ross  v.  Faust,  54 

Spitler,  13  Ind.  235;   Buckinghouse  v.  Ind.  471. 


236  PLEADINGS— THE    COMPLAINT.  [CHAP. 

10.  Tlie  history,  geography,  topography,  and  condition  of  the  country. e — 
The  rule  that  the  courts  will  take  judicial  knowledge  of  the  topography 
and  condition  of  the  country,  has  been  carried  to  the  farthest  extreme. 
In  the  case  of  Williams  v.  The  State  the  court  say : 

"  The  history  of  a  country,  its  topography  and  condition  enter  into 
the  construction  of  the  laws  which  are  made  to  govern  it,  and  we  must 
notice  these  facts  judicially.  We  must  know  the  fact  that  in  the  State 
of  Indiana  a  public  highway  sometimes  ceases  to  be  traveled,  #ud  is 
abandoned  long  before  it  ceases  to  be  legally  a  public  highway,  and  that 
often  portions  of  a  highway  are  not  u*ed  as  such  for  so  long  a  time  that 
they  cease  to  be  public  places;  and,  indeed,  there  are  occasionally 
places,  owing  to  their  peculiar  topography  on  public  highways  con- 
stantly used,  which  become  private,  and  afford  even  secret  places  where 
the  act  charged  upon  the  appellant  might  have  been  committed  wholly 
away  from  public  gaze  or  annoyance.  Besides,  sometimes,  public 
highways  are  laid  out  and  established  legally  through  portions  of 
primeval  forest  and  thick  underbrush,  affording  many  secret  places 
which  remain  secure  and  unbroken  and  impenetrable  to  the  public  eye 
for  a  long  time  before  such  highways  are  opened  practically  and  be- 
come public  places." 

This  is  carrying  the  doctrine  of  judicial  knowledge  to  an  extreme 
that  can  not  be  justified.  There  is  no  reason  to  uphold  it.  To  say 
that  the  court  must  judicially  know  that  a  road  sometimes  ceases  to  be 
traveled,  and  that  often  portions  of  highways  are  not  used  as  such,  and 
that  such  as  are  constantly  used  sometimes  furnish  secret  places  for  the 
commission  of  crime  is  a  strange  application  of  the  rule.*  It  has  also 
been  held  that  the  courts  will  take  judicial  notice  of  the  geographical 
positions  of  stations  on  railroads/ 

11.  The  duty  of  common  carriers." 

12.  Of  the  seasons  of  the  year  and  of  husbandry.1" 

13.  Distances  and  facilities  for  travel,  and  the  time  necessary  to  reach 
any  given  point.1 

14.  Attorneys;  appearance. — Where  an  attorney  has  once  appeared 
in  a  cause  in  the  court  below,  and  the  cause  has  been  reversed  and  ap- 

(e)  Steinmetz  v.  The  Versailles,  etc.,         (g)  The  Evansvilie,  etc.,  R.  R.  Co.  v. 
Turnpike  Co.,  57  Ind.  457;  Mossman     Duncan,  28  Ind.  441. 

v.  Forest,  27  Ini.  233;  The  Indianap-  (h)  Ross   v.  Boswell,   60   Ind.    2:3-3; 

olis,  etc.,  R.  R.  Co.  v.  Lyons,  48  Ind.  Abshire  v.  Mather,  27  Ind.  381  ;  Abel 

119;    Williams  v.  The   State,  64  Ind.  ».  Alexander,  45  Ind.  523. 

653;  The  States  Moriarty,  74  Ind.  103.  (i)  Cefret    r.    Burch,    1    Blkf.   400; 

(f )  The  Indianapolis,  etc.,  R.  R.  Co.  Hipes  c.  Ci.chran,  13  Ind.  175;  Man- 
v.  Stephens,  28  Ind.  429;  The  Indian-  ning  v.  Gasharie,  27  Ind.  399;  Ward 
apolis,  etc.,  R.  R.  Co.  v.  Case,  15  Ind.  42.  v.  Calyhan,  30  Ind.  395. 

*  Since  the  text  was  written  this  case  has  been  overruled. 


XII.  J  PLEADINGS — THE    COMPLAINT.  237 

pealed  to  the  supreme  court  the  second  time,  it  has  been  held  that  the 
court  will  judicially  know  what  attorneys  have  appeared  in  the  cause.* 

15.  The  times  tif  holding  Inferior  courts.* 

16.  That  whisky  and  wine  are  intoxicating.1 

17.  That  ale  is  a  malt  liquor. m 

18.  Tlie  number  of  votes  cast  at  a  general  election."— The  case  cited  has 
not  met  the  approval  of  the  profession.     The  cause  was  surrounded  by 
such  political  influences  that  the  decision  has  been  looked  upon  with 
disfavor.     The  judges  were  divided  in  opinion,  and  two  of  their  num- 
ber dissented  from  the  conclusion  reached  by  the  majority  of  the  court. 
But,  however  the  case  may  be  regarded,  it  must  be  recognized  as -the 
law  of  this  state  for  the  present.     The  rule  only  extends  to  general 
elections,  and  not  to  merely  local  elections  in  towns,  cities,  or  town- 
ships. 

19.  That  during,  and  since  the  war  of  the  rebellion,  the  adjutant- 
general  of  the  state  has  kept  muster-rolls  of  the  different  regiments  of 
volunteers*furnished  by  the  state  in  the  military  service  of  the  United 
States.0 

20.  The  population  of  cities  and  towns.? 

21.  That  a  town  or  city  is  incorporated  as  swcLq — In  an  earlier  case  it 
was  held,  in  express  terms,  that  the  court  could  not  judicially  know 
that  a  town  was  incorporated ; r  but  the  case  of  Stultz  v.  The  State 
applies  only  to  such  towns  as  are  incorporated  by  a  public  statute. 
The  town  of  Huntington,  of  which  the  court  was  speaking,  was  incor- 
porated by  act  of  the  legislature ; a  and  this  act,  being  a  public  statute, 
must  be  judicially  noticed  by  the  courts.     But  the  court,  in  the  latter 
case,  takes  judicial  notice  that  the  town  of  Huntington  has  since  be- 
come an  incorporated  city  "  under  the  provisions  of  the  general  law  of  this 
state."    This  is  based  upon  the  ground  that  the  court  must  take  judicial 
notice  of  the  history  of  the  state.     This  position  is  entirely  inconsistent 
with  the  case  of  Sipe  v.  Holiday ;  for  the  incorporation  of  a  town,  un- 
der a  general  statute,  is  as  much  a  part  of  the  history  of  the  state  as 

(j)  Symmes  v.  Major,  21  Ind.  443.  (m)  Wiles  v.  The  State,  33  Ind.  206. 

(k)  Buckinghouse  v.  Gregg,  19  Tnd.  (n)  The  State  c.  Swift,  69  Ind.  505. 

401;    McGinnis  v.  The  State,  24  Ind.  (o)  The  Board  of  Comm'rs,  etc.,  v. 

500;  Koberts  v.  Masters,  40  Ind.  461;  May,  67  Ind.  562. 

Collinst>.  TheState,  58  Ind. 5;  Spencer  (p)  Stultz  r.  The  State,  65  Ind.  492; 

r.  Curtis,  57  Ind.  221 ;   Dorman  v.  The  Kalbrien  v.  Leonard,  .34  Ind.  497. 

State,  56  Ind.  454.  (q)  Stultz  v.  The  State,  65  Ind,  492. 

(1)  Carmon   r.  The   State,    18   Ind.  (r)  Sipe  v.  Holiday,  62  Ind.  4,  8. 

450;  Eagan  v.  The  State,  53  Ind.  162;  (s)   Acts  1873,  Special  Session,  149. 
Sclicht    v.    The   State,   56    Ind.    173; 
Jackson  v.  The  State,  19  Ind.  312. 


233  PLEADINGS — THE    COMPLAINT.  [CHAP. 

that  of  the  incorporation  of  a  city,  and  should  be  judicially  known  by 
the  court  for  the  same  reason.  Where  a  town  or  city  is  incorporated 
by  an  act  of  the  legislature,  there  is  good  reason  for  holding  that  the 
court  should  take  judicial  notice  that  the  town  or  city  is  incorporated; 
but  where  a  general  statute  is  enacted,  by  virtue  of  which  towns  or 
cities  may  or  may  not  become  incorporated,  as  the  inhabitants  shall  de- 
termine, the  rule  that  a  court  must  know  that  a  certain  town  or  city 
has  taken  advantage  of  it  is  without  any  foundation.  If  it  is  based 
upon  the  ground  of  its  being  a  part  of  the  history  of  the  state,  the  rule 
could  be  extended  to  every  public  act  done  in  the  state,  as  they  all  go 
to  make  up  its  history. 

22.  That  a  trustee  of  a  civil  township  is  also  the  trustee  of  the  school 
toivnship.* 

23.  That  "C.  0.  D"  means  collect  on  delivery. u 

24.  That  a  notice  given  on  a  certain  date  is  given  on  Sunday.* 

25.  Of  proclamations  by  ilie  governor  of  the  state.* 

26.  Of  congressional  surveys.* 

27.  Of  the  officers  of  the  court  and  their  signatures.7 

28.  Of  the  times  of  holding  general  elections.* 

349.  Of  what  the  courts  will  not  take  judicial  notice. 

1.  Statutes  of  other  states. — It  is  well  settled  by  authority  in  this  state 
that  the  courts  will  not  take  judicial  notice  of  the  statutes  of  other 
states.     They  must,  therefore,  be  pleaded  and  proved." 

2.  The  contents  of  legislative  journals. — The  rule  that  courts  will  take 
judicial  notice  of  public  statutes  does  not  extend  to  the  contents  of 
journals  of  the  legislature.     The  proper  officers  of  the  two  houses  must 
determine  whether  a  law  has  been  properly  passed  or  not  before  signing 
it,  and  the  courts  will  not  look  behind  the  act  itself,  signed  by  the 
president  of  the  senate  and  speaker  of  the  house  of  representatives.1* 

(t)  Inglis  v.  The  State,  61  Ind.  212.  (a)  Stout  v.  Wood,  1   Blkf.  71 ;  El- 

(u)  The  United  States  Express  Co.  liot  v.  Ray,  2  Blkf.  31  ;  Titus  v.  Scant- 

v.  Keefer,  59  Ind.  263.  ling,  3  Blkf.  372;  Doe  v.  Collins,  1  Ind. 

(v)  Chrisman  v.  Tuttle,  59  Ind.  155.  24;  Johnson  v.  Chambers  12  Ind.  102; 

(w)  Dowdell  v.  The  State,  58  Ind.  Engler  v.  Ellis,  16  Ind.  475;  Crake  v. 

333.  Crake,  18  Ind.  156;    Buckinghouse  v. 

(x)  Murphy   v.  Hendricks,  57  Ind.  Gregg,  19  Ind.  401;  Snyder  v.  Snyder, 

593.  25    Ind.   399;    Smith   v.  The   Aluncu' 

(y)  Hipes  v.  The  State,  73  Ind.  39;  National  Bank,  29  Ind.  158. 

Buell  v.  The  State,  72  Ind.  523.  (b)  Coleman  v.  Dobbins,  8  Ind.  156; 

(z)  Urmston  v.  The  State,  73  Ind.  Van    Dorn    v.    Bodley,   38   Ind.   402; 

175.  Skinner  v.  Deming,  2  Ind.  558;   Evans, 

Auditor  of  State,  v.  Browne,  30  Ind. 
514. 


XII.]  PLEADINGS — THE    COMPLAINT.  239 

The  rule  that  the  courts  can  not  take  judicial  notice  of  the  contents 
of  legislative  journals  is  very  clearly  settled  by  the  authorities  cited. 
There  is,  however,  another  question  nearly  connected  with  it,  upon 
which  the  decisions  are  somewhat  conflicting,  viz.,  whether  the  court 
can  go  behind  the  legislative  act,  as  signed  by  the  proper  officers,  and 
inquire  into  the  legality  of  its  passage. 

The  question  was  presented  in  the  case  of  Coleman  v.  Dobbins,  and 
was  thoroughly  considered.  The  court  say  :  "  Two  inquiries  are  sug- 
gested by  this  assignment:  1.  Whether  the  court  will  go  behind  the 
statute  to  look  into  the  mode  of  its  passage ;  2.  And,  if  so,  how  is  the 
question  to  be  presented  to  the  court  ? 

"  1.  The  most  superficial  must  admit  that  a  question  pregnant  with 
such  disastrous  consequences  as  this,  in  certain  contingencies,  might 
be,  should  arrest  the  attention  of  every  department  of  the  government. 
The  language  of  the  constitution  is  very  explicit  as  to  the  mode  of 
passing  bills;  and  what  is  more,  it  will  be  perceived  that  it  is  not 
merely  directory,  but  imperative.  'A  majority  of  all  the  members 
elected  to  each  house  shall  be  necessary  to  pass  every  bill.'  '  Every 
bill  shall  be  read  by  sections  on  three  several  days  in  each  house.'  It 
is  not  easy  to  see  upon  what  principles  a  statute  passed  in  derogation 
of  these  constitutional  requirements  could  be  sustained.  That  the 
facts  in  relation  to  the  passage  of  an  act  would,  if  formally  presented, 
be  a  proper  subject  of  judicial  inquiry  and  determination  can  not  be 
doubted  ;  for,  otherwise,  the  people  would  be  deprived  of  all  the  guards 
and  checks  which  the  constitution  was  intended  to  erect  between  them 
and  the  encroachments  of  their  public  servants.  The  constitution  is  a 
law  to  even  the  law-making  power.  What  the  people  say  in  that  in- 
strument shall  be,  must  be,  and  there  must  of  necessity  be  some  mode 
of  arresting  any  infraction  of  its  provisions.  On  any  other  hypothesis, 
the  experiment  of  constitutional  restrictions  on  delegated  power  would 
be  a  total  failure. 

"  The  inquiry  behind  the  statute  to  see  whether  it  was  constitution- 
ally passed,  is  by  no  means  so  novel  as  many  suppose.0  All  these  cases, 
and  others  that  might  be  cited,  admit  the  power  of  the  courts  to  inquire 
whether  the  law  was  passed  in  conformity  to  the  constitution.  The 
courts  can  not  compel  the  legislature  to  act.  They  assume  no  such 
power.  They  only  assume  to  inquire,  when  a  case  is  properly  made  : 
1.  Whether  the  provisions  of  the  law  are  consistent  with  the  constitu- 

(c)  Citing   The  People  r.  Purdy,  2  2  Ind.  560;   Miller  v.  The  State,  3  Ohio, 

Hill,  31;  Purdy  v.  The  People,  4  Hill,  475;    The  People  v.  The   Supervisors, 

384;  10  Harris  (Pa.),  376;    Fowler  r.  etc.,  4  Selden,  317;  14  111.  113. 
Peirce,  2  Cal.  163;  Skinner  v.  Deming, 


240  PLEADINGS — THE     COMPLAINT.  [CHAP. 

tioii;  2.  Whether  it  was  passed  as  the  constitution  prescribes.  If, 
upon  examination,  the  courts  conclude  in  the  negative,  on  either  point, 
they  have  no  option  but  to  declare  the  law  void.  .  .  .  Courts  are 
presumed  to  know  the  law.  Thus  the  provisions  of  a  public  statute 
must  be  judicially  noticed  whenever  they  are  applicable  to  pending 
cases.  But  to  know  the  law  does  not  imply  a  knowledge  of  all  the 
steps  attending  its  passage. 

"  We  are  not  aware  that  it  is  the  duty  of  the  courts  to  take  judicial 
notice  of  the  course  of  legislation  or  the  contents  of  the  journals.  We 
are  not  presumed  to  know  the  facts  which  transpire  in  the  progress  of 
a  bill  through  the  two  houses  of  the  general  assembly.  ...  It 
does  not  follow  that  the  party  claiming  any  right  or  defense  growing 
out  of  the  action  of  the  assembly  should  plead  the  entire  journals  at 
the  court  by  way  of  error.  But  when  the  facts  relied  upon  are  brought 
before  us  judicially,  it  will  be  our  duty  to  inspect  them  as  we  would 
any  other  record,  and  determine  whether  the  legislative  action  they 
record  on  the  bill  in  question  is  in  accordance  with  the  constitution."11 

This  decision  clearly  decides  three  propositions :  1.  That  the  court 
has  the  right  to  go  behind  the  published  act  of  the  legislature  and  de- 
termine from  its  journals  whether  the  act  in  question  was  legally  passed 
or  not;  2.  That  the  court  will  not  take  judicial  notice  of  the  contents 
of  the  journals ;  3.  That  so  much  of  the  journals  of  the  legislature 
as  is  necessary  to  make  out  the  cause  of  action  or  defense  relied  upon, 
and  no  more,  must  be  alleged  and  proved. 

In  a  later  case  the  question  whether  the  court  can  go  behind  the  en- 
rolled act  of  the  legislature,  signed  by  its  proper  officers,  to  determine 
upon  the  question  of  its  validity,  was  again  presented,  and  it  was  held 
that  the  court  had  no  such  power ;  that  the  authentication  of  the 
officers  must  be  taken  as  conclusive  evidence  that  the  law  was  enacted 
in  conformity  with  the  requirements  of  the  constitution.  In  the  course 
of  a  lengthy  opinion,  the  court  say:  "  This  exact  question  has  received 
the  consideration  of  other  American  courts,  who  have  thoughtfully, 
and  with  careful  steps,  reached  the  conclusion  that  the  authentication 
of  the  presiding  officers  of  the  legislature  is  conclusive  evidence  of  the 
proper  enactment  of  the  law,  and  that  they  can  not  look  elsewhere  to 
falsify  it." c 

(d)  Coleman  v.  Dobbins,  8  Ind.  156.  Conn.  8;  Fouke  r.  Flemming,  13  Md 

(e)  Evans  v.  Browne,  30   Ind.  514,  392;  People  v.  Supervisors  of  Chenan 
citing  State  v.  Young,  5  Am.  Law  Reg.  go,  4  Seld.  317;  People  v.  Devlin,  3i 
(N.  S.)  679;  Pacific  K.  R.  Co.  v.  The  N.  Y.  2<>9.     But   see    Cooley's   Const 
Governor,  23    Mo.  353;    Duncomb   v.  Lim.  104,  and  cases  oited. 

Prindle,  12  Iowa,  1 ;  Eld  v.  Gorham,  '20 


XII.]  PLEADINGS — THE    COMPLAINT.  241 

In  a  late  work  on  Code  Pleading,  the  author  cites  the  case  of  Evans 
v.  Browne  as  authority  that  the  courts  of  Indiana  will  take  judicial 
knowledge  of  the  contents  of  the  journals  of  the  legislature/ 

The  case  does  not  decide  the  point,  but  holds  that  the  court  can  not 
look  to  the  journals,  judicially  or  otherwise,  to  determine  the  validity 
of  a  law  passed,  as  they  could  not  look  beyond  the  enrolled  act.  It  is 
true,  the  learned  judge  who  delivered  the  opinion  speaks  against  the 
the  decision  in  Coleman  v.  Dobbins,  and  complains  that  this  and  other 
cases  do  not  pass  directly  upon  the  point,  and  then  follows  the  bad  ex- 
ample complained  of  and  avoids  a  decision  of  the  question^ 

3.  The  time  of  the  division  of  counties,  by  county  commissioners,  under 
the  general  law. — While  it  is  held  that  courts  must  take  judicial  notice 
of  a  county  created  by  public  statute,  the   rule  does  not  extend  to 
the  time  of  a  division  of  a  county,  under  the   general   law,  by  the 
proper  authority.11     This  case  can  not  be  made  to  harmonize  with  the 
rule,  that  the  court  will  take  judicial  notice  that  a  town  has  been  in- 
corporated under  a  general  statute. 

4.  The  number  of  wards  in  a  city,  or  the  number  of  councilmen.* 

5.  Of  the  organization  of  corporations. — As  a  rule,  courts  will  not  take 
judicial   notice   of  the   existence   of  corporations.      While   the  law 
authorizing  the  organization  of  corporations  will  be  judicially  noticed, 
the  fact  that  some  particular  corporation  has  organized  under  it  is  not 
within  the  ruleJ 

The  rule  is  well  established  that  the  fact  that  a  corporation,  suing  as 
such,  is  properly  organized,  will  be  presumed  unless  the  question  is 
put  in  issue  by  special  plea.k 

(f)  Bliss'  Code  PI.,  ?  194.  (j)  Cicero  Hygiene  Draining  Co.  v. 

(g)  Busk.  Prac.  15;  King  v.  Arun-  Craighead,   28   Ind.   274;    Chance    v. 
del,  Hobart,  109 ;  Grob  v.  Cushman,  45  The   Indianapolis,  etc.,  R.  R.  Co.,  32 
111.  119;  Illinois  Central  R.  R.  Co.  v.  Ind.  472. 

Wren,   43   111.   77  ;   Shipman   v.   The  (k)  Cicero  Hygiene  Draining  Co.  v. 

State,  42  Wis.  377;  1  Green.  Ev.,  §6,  Craighead,  28  Ind.  274;  Harris  v.  Mus- 

and  cases  cited.     See,  also,  McCulloch  kingum  Mfg.  Co.,  4  Blkf.  267;  Richard- 

v.  The  State,  11  Ind.  424,  where  it  is  son  v.  The  St.  Joseph  Iron  Co.,  5  Hlkf. 

held  that  the  journals  of  the  legisla-  146;  Heaston  v.  The  Cincinnati,  etc., 

ture   are   conclusive,  and   can  not   be  R.  R.   Co.,  16  Ind.  275;    Hubbard  v. 

disputed.     Wright  v.  Defrees,   8  Ind.  Chappel,  14    Ind.  601;    Guaga   Co.  v. 

298.  Dawson,  4  Blkf.  202;  Dunning  v.  Th"> 

(h)  Buckinghouse  v.  Gregg,  19  Ind.  New  Albany,  etc.,  R.  R.  Co.,  2   Ind. 

401.  437;    Railsback   v.  The   Liberty,    etc., 

(i)  Moberry  v.  The  City  of  Jeffer-  Turnpike  Co.,  2  Ind.  656. 
sonville,  38  Ind.  198;  Baker  v.  Tobin, 
40  Ind.  310. 
16 


242  PLEADINGS — THE    COMPLAINT.  [CHAP, 

Therefore  it  is  not  necessary  to  allege  the  existence  of  a  corporation 
in  the  first  instance.  But  this  is  a  mere  presumption  that  must  not  be 
confounded  with  judicial  knowledge.  When  the  question  of  the  ex- 
istence of  the  corporation  is  put  in  issue  by  special  answer,  the  fact  of 
the  legal  incorporation  of  the  company  must  be  proved  or  disproved  as 
any  other  fact. 

There  is  an  exception  to  this  rule  found  in  the  reports.  It  is  held 
that  where  draining  associations  file  their  articles  of  association  in  the 
recorder's  office  of  any  county,  the  courts  of  that  county  must  take 
judicial  notice  of  the  organization  of  the  company.1 

But  this  rule  applies  only  to  the  class  of  corporations  named,  and 
the  courts  of  the  county  where  the  corporation  has  its  articles  of  asso- 
ciation recorded  are  expressly  required  by  statute  to  take  judicial  no- 
tice of  its  incorporation.™  It  was  held,  under  this  statute,  that  the 
statute  only  applied  to  the  county  where  the  articles  of  association 
were  recorded,  and  that  the  supreme  court  would  not  therefore  take 
judicial  notice  of  the  incorporation  of  such  company."  But  by  a  later 
statute  the  requirement,  that  should  not  have  been  made  to  apply  to 
any  court,  has  been  extended  to  all  the  courts  of  the  state.0 

And  it  should  be  further  noticed  that  the  rule  that  in  the  absence- 
of  a  special  answer  controverting  the  fact,  it  will  be  presumed  that  a 
corporation  suing  as  such  is  properly  organized,  does  not  apply  to  a 
case  where  the  corporation  is  suing  upon  a  subscription  made  before 
the  corporation  is  organized  and  with  a  view  to  such  organization. 

In  such  case,  the  organization  of  the  corporation  is  a  condition  pre- 
cedent to  the  right  to  recover  on  the  subscription,  and  the  fact  must 
be  alleged  and  proved. p 

And  the  corporation  must  allege  in  the  complaint  the  facts  showing 
that  the  company  has  complied  with  the  statute  in  its  organization. q 

6.  The  names  of  townships  composing  a  county. T 

7.  That  malt  liquors  are  intoxicating. 8 

8.  Private  statutes. — The  rule  that  courts  will  take  judicial  notice  of 
statutes  does  not  extend  to  private  statutes.     This  is  upon  the  theory 

(1)  The  Eel    River  Draining  Ass'n  The  Crawfordsville,  etc  ,  Turnpike  Co., 

t;.  Topp,  16  Ind.  '242;    Herod  v.  Rod-  19  Ind.  242;    The   Indianapolis,   etc, 

man,  16   Ind.  241 ;    Anderson   v.  The  Co.  v.  Herkimer,  46  Ind.  142. 

Kerns  Draining  Co.,  14  Ind.  199.  (q)  Fox   v.  Allensville,   etc.,   Turn- 

(m)  1  G.  &  H.  303.  pike  Co.,  46   Ind.  31  ;    Miller   v.  The 

(n)  Cicero  Hygiene  Draining  Co.  v.  Wildcat  Gravel  Road  Co.,  57  Ind.  241. 

Craighead,  28  Ind.  274.  (r)   Bragg  v.  The  Board  of  Comm'rs 

(o)  1  R.  S.  1876.  p.  419,  \  5.  of  Rush  Co.,  34  Ind.  405. 

(p)  Chance  v.  The  Indianapolis,  etc.,  (s)  Shaw  v.  The  State.  56   Ind.  188f 

Turnpike   Co.,  32    Ind.  472;    West  v.  Klare  r.  The  State,  43  Ini  483. 


XII.]  PLEADINGS — THE    COMPLAINT.  243 

that  such  a  statute  is  in  the  nature  of  a  contract  with  the  party  affected 
by  it.* 

It  has  been  held  that  to  constitute  a  statute  a  public  act,  it  is  not 
necessary  that  it  should  extend  to  all  parts  of  the  state.  It  is  a  public 
act,  if  it  extends  equally  to  all  persons  within  the  territorial  limits  de- 
scribed by  the  statute." 

350.  Comments  on  the  decided  cases. — It  has  not  been  the 
purpose  to  go  into  the  question  generally  of  what  the  courts  will  take 
judicial  notice.  This  must  be  found  in  the  works  on  evidenced  The 
matters  noticed  are  such  only  as  our  own  supreme  court  have  passed 
upon.  It  will  be  difficult  to  reconcile  the  cases  with  themselves,  and 
most  if  not  all  of  them  are  only  worthy  of  consideration  as  having 
settled  the  question  as  to  the  class  of  cases  presented.  None  of  them 
attempt  to  state  the  reason  upon  which  courts  will  take  judicial  notice 
of  one  fact  more  than  another.  No  clear  distinction  is  made  between 
judicial  knowledge  and  presumption.  Judicial  knowledge  is  some- 
thing that  can  not  be  disproved-  A  matter  that  is  within  the  judicial 
knowledge  of  the  court  must  be  taken  to  exist  absolutely,  and  can  not 
be  controverted." 

Presumptions  may  be  equally  conclusive ;  but  in  the  great  majority 
of  cases,  where  the  question  arises  in  pleading,  the  presumption  is 
only  prima  facie  evidence,  and  avoids  the  necessity  of  pleading  the  fact 
presumed  to  exist  until  denied  by  the  opposite  party.  When  denied, 
the  presumption  may  be  rebutted  by  evidence.1 

And  a  presumption  may  be  rebutted  by  the  judicial  knowledge  of 
the  court. y 

The  ground  upon  which  courts  take  judicial  notice  of  a  fact  is  that 
it  is  one  that  "  ought  to  be  generally  known  within  the  limits  of  their 
jurisdiction."2 

When  this  test  is  applied  to  some  of  the  cases  decided  in  Indiana,  it 
will  be  found  that  the  rule  has  been  extended  far  Ibeyond  its  true 
intent. 

(t)  Levy  c.  The  State.  6  Ind.  281;  (x)   Best  on  Ev.,  §g  42,  306,  314,  329; 

Hingle  v.  The  State,  24  Ind.  28.  1  Green.  Ev.,  §§  14,  15. 

(u)  Levy  r.  The  State,  6  Ind.  281 ;  (y)  Best  on  Ev.,  §  329. 

Pierce  v.  Kimball,  9  Greenl.  54;  Hin-  (z)  1    Green.    Ev.,    |   6;    State    r. 

gle  v.  The  State,  24  Ind.  28.  Twitty,  11  Am.  Dec.  779,  and  note;  s. 

(v)  1  Green.  Ev.,  2§  4,'5,  6,  6a;    Best  c.,  Hawks,  441;    Slaughter  p.  Barnes, 

Ev.,  §?  253,  254.  13  Am.  Dec.  190,  and  note ;  s.  c.,  3  A. 

(w)   Best  on    Ev.,  §  306;    1    Green.  K.  Marshall,  412. 
Ev.,  §  15. 


244  PLEADINGS — THE    COMPLAINT.  [CIIAI'. 

351.  Complaint  need  not  be  in  any  particular  form. — Oiie 
of  the  objections  raised  to  the  code   system  of  pleading   is  that  the 
pleadings  are  noUrequired  to  be  in  any  particular  form,  and  therefore 
there  is  no  science  in  pleading.     The  first  of  these  is  true.     The  com- 
plaint or  other  pleading  is  not  judged  by  its  form.     If  it  contains  the 
facts  necessary  to  constitute  a  cause  of  action,  it  must  be  held  good,  no 
matter  in  what  form  it  is  alleged.     It  does  not  follow  from  this,  how- 
ever, that  there  is  no  science  in  pleading  under  the  code.    On  the  con- 
trary, more  skill  is  required  of  the  pleader  under  the  code  system  than 
at  common  law      No  form  of  words  or  phrases  will  answer  for  every 
case,  as  at  common  law.     Every  complaint  must,  to  a  great  extent,  be 
a  form  for  itself.     As  the  facts  must  be  stated,  each  case  must  neces- 
sarily be  different  from  every  other,  because  no  two  cases  are  found 
where  the  facts  are  the  same. 

It  requires  great  care  and  skill  to  draw  a  complaint  in  compliance 
with  the  statute,  where  the  cause  of  action  grows  out  of  many  diverse 
facts.  The  rule  that  requires  conciseness  of  expression  is  constantly 
being  violated.  Pleadings  that  should  be  short,  concise,  and  in  direct 
language  are  frequently  long  and  prolific,  containing  much  that  is 
mere  surplusage.  This,  it  is  claimed,  is  the  fault  of  the  system. 
Nothing  is  farther  from  the  truth.  It  is  a  violation  of  the  express 
terms  of  the  code.  The  habit  of  making  the  pleadings  too  long  and 
voluminous  is  one  that  adds  greatly  to  the  labors  of  the  attorneys  and 
the  court,  and  many  times  deprives  a  pleading  of  much  of  its  force. 
One  of  the  most  important  lessons  that  a  young  attorney  should  be 
taught  at  the  outset  is  brevity  in  pleading.  The  facts  should  be  stated 
in  the  fewest  words  possible,  and  in  plain  and  concise  language,  with- 
out repetition.  When  this  is  done,  the  facts  furnish  the  form  of  the 
pleading. 

The  pleader  should  be  able  to  determine  from  the  facts  stated  what 
remedy  he  is  entitled  to,  but  if  he  makes  a  mistake,  and  asks  for  a 
remedy  to  which  he  is  not  entitled,  his  pleading  is  not  bad  for  that  rea- 
son, if  the  facts  stated  entitle  him  to  any  remedy.8 

352.  Evidence  should  not  be  pleaded. — It  is  not  always  easy 
to  distinguish  between  the  facts  and  the  evidence.     The  evidence  should 
never  be  pleaded.     A  fact  may  exist  which  goes  to  make  up  the  cause 
of  action,  an'd  may  be  stated  in  a  few  words,  while  the  evidence  neces- 
sary to  establish  the  fact  may  consist  of  many  circumstances  and  col- 
lateral facts  that  would  require  many  pages  to  set  out.     Any  such  col- 

(a)  Shipler  v.  Isenhower,  27  Ind.  36;  Howe  v.  Dibble,  45  Ind.  120;  Patter- 
son v.  The  State,  10  Ind.  296. 


XII.]  PLEADINGS — THE    COMPLAINT.  245 

lateral  facts  and  circumstances  add  nothing  to  the  strength  of  the 
pleading,  and  will  be  disregarded  as  mere  surplusage.  If  the  proper 
motion  is  made,  such  matter  will  be  stricken  from  the  complaint.b 

353.  Facts  must  be  stated  positively. — It  was  one  of  the  rules 
of  pleading  at  common  law  that  "  pleadings  must  not  be  by  way  of 
recital,  but  must  be  positive  in  their  form."c 

This  rule  is  not  changed  by  the  code.  The  pleading  should  not  be 
by  way  of  recital,  or  argumentative  or  hypothetical  in  its  form.d 

But  while  the  violation  of  this  rule  is  a  fault,  it  affects  the  form  of 
the  pleading  rather  than  the  substance,  and  does  not  render  it  subject 
to  demurrer.6 

354.  Complaint   must  show  cause   of  action  in  all  who 
unite  as  plaintiffs. — The  complaint,  where  a  joint  action  is  brought, 
may  show  a  cause  of  action  as  to  part  of  the  plaintiffs,  but  not  as  to 
the  others.     It  would  seem  in  this  class  of  cases,  that  the  complaint 
should  be  held  good  as  to  those  in  whose  favor  a  cause  of  action  is 
stated,  but  the  rule  is  clearly  the  other  way  in  Indiana. 

If  the  complaint  attempts  to  allege  a  joint  cause  of  action  as  to  all 
of  the  plaintiffs,  but  shows  a  cause  of  action  in  favor  of  a  part  only, 
whether  joint  or  several,  the  complaint  is  bad  not  only  as  to  those  in 
whom  a  cause  of  action  is  not  shown,  but  as  to  all/ 

355-  Where  complaint  may  be  for  tort  or  upon  contract ; 
election. — We  have  seen  that  in  certain  cases  the  plaintiff  may  sue 
in  tort,  or  he  may  treat  the  wrong  as  a  contract  and  sue  upon  it  as  such. 
The  rule  is,  in  most  of  the  states,  that  the  plaintiff  must  make  his  elec- 
tion in  which  way  he  will  sue,  and  that  he  is  bound  by  the  election 
throughout.  In  common-law  pleading  the  form  in  which  the  action 
was  brought  necessarily  showed  the  election.  This  is  not  true  under 
the  code  in  all  cases.  The  complaint  states  the  facts.  If  from  the 
facts  stated  the  law  implies  a  promise  to  pay,  the  plaintiff  is  entitled  to 

(b)  Lash    v.   Perry,    19    Ind.   322;  (e)  Judah  r.  The  Trustees  of  Vin- 
Harding   v.   The  Third   Presbyterian  cennes  University,  23  Ind.  272,  279. 
Church,   20   Ind.   71;    Judah   v.   The  (f  )  Debolt   r.  Carter,  31   Ind.  355: 
Trustees  of  Vincennes  University,  23  Berkshire    r.    Shultz,    25    Ind.    520; 
Ind.  272.  Strange  i:  Lowe,  8  Blkf.  243;  Lipperd 

(c)  Stephen  PI.  387.  r.   Edwards,    39   Ind.   165;    Maple  v. 

(d)  Iglehart's    Prac.   12;   1.    Bates'  Beach,  43  Ind.  51 ;  Parker  v.  Small,  58 
Ohio  PI.  and  Par.  141.  I»d.  349;  Holzmnn  v.  Hibben,  100 Ind. 

83S;  Faulkner  r.  Brigel,  101  Ind.  3'_j. 


246  PLEADINGS — THE    COMPLAINT.  [CHAP. 

recover  as  upon  contract  although  the  acts  charged  would  entitle  him 
to  a  judgment  for  damages  in  an  action  for  tort." 

356.  Every  substantial  fact  necessary  to  constitute  a  cause 
of  action  rriust  be  alleged. — This  rule  grows  naturally  out  of  the 
statute.     The  right  of  the  plaintiff  to  recover  depends  not  upon  formal 
allegations,  but  upon  the  facts  pleaded.     While  the  pleader  should  not 
include  any  matter  in  his  complaint  not  necessary  to  a  complete  rem- 
edy, he  should  be  more  careful  to  allege  every  fact  that  is  material 
to  the  plaintiffs  recovery.     To  leave  out  one  material  fact  necessary 
to  a  recovery  is  to  render  the  complaint  bad  on  demurrer,  and  also 
in  the  supreme  court  without  demurrer.     The  requirement  should  not 
be  extended  beyond  the  facts,  therefore  matters  that  must  necessarily 
be  inferred  from  other  facts  alleged  should  not  be  pleaded.11 

357.  "When  it  is  necessary  to  plead  matter  of  inducement. 
— Where  it  is  necessary  to  plead  matter  of  inducement  less  particu- 
larity is  required  than  in  pleading  matters  of  substance.     Most  of  the 
matter  in  pleading,  regarded  under  the  common-law  practice,  and  in 
most  of  the  states,  as  matter  of  inducement,  is  not  necessary  to  be 
alleged  in  Indiana. 

"  Matter,  of  inducement  is  that  which  is  merely  introductory  to  the 
essential  ground  or  substance  of  the  complaint  or  defense."  It  is  held, 
in  most  of  the  states,  that  in  actions  by  corporations  and  guardians, 
administrators,  executors,  and  others,  acting  in  a  representative  ca- 
pacity, it  must  be  shown,  by  way  of  inducement,  that  the  plaintiff  is 
a  corporation,  or  acts  in  such  representative  capacity.  Such  allega- 
tions, as  will  be  shown  hereafter,  are  not  necessary  in  this  state.  The 
right  of  the  plaintiff  to  maintain  the  action,  in  the  capacity  in  which 
he  sues,  will  be  presumed  unless  specially  controverted  by  way  of 
answer.'  There  are  other  matters,  however,  that  fall  within  the  defin- 
ition of  matters  of  inducement  that  must  be  pleaded :  as,  in  actions 
for  slander,  where  the  words  are  not  actionable  of  themselves,  but  are 
made  so  by  some  extrinsic  facts,  such  extrinsic  facts  must  be  pleaded.' 

It  may  be  said,  generally,  that  all  matters  necessary  to  show  a  right 
in  the  particular  person  to  sue,  where  such  right  will  not  be  presumed 
by  the  court,  and  all  the  facts  necessary  to  explain  and  supplement  the 

•  (g)  Pom.  Hem.,   §§  567,  572;    Bliss'  (j)  Emerson  v.  Marvel,  55  Ind.  265; 

Code  PL,  §  155.  Hart  v.  Coy,  40  Ind.  553;  De  Armond 

(h)  Iglehart's  PI.  and  Pr.  9,  §  4.  v.  Armstrong,  37  Ind.  35. 
(i)  Post,  §§  368,  479,  564. 


XII.]  PLEADINGS — THE    COMPLAINT.  247 

direct  allegations  that  a  wrong  has  been  committed,  should  be  alleged, 
by  way  of  inducement. k 

358.  Matter  of  aggravation  may  be  pleaded. — Matter  of  ag- 
gravation is  proper  to  be  pleaded  ;  but  the  failure  to  allege  such  matter 
does  not  vitiate  the  complaint.     Such  allegations  are  explanatory  of 
the  enormity  of  the  offense  committed,  in  case  of  forcible  injuries.1 

It  is  sometimes  important,  as  showing  the  extent  of  the  injury  in- 
flicted, and  the  purpose  with  which  it  was  done,  and  may  seriously 
affect  the  measure  of  damages.  But,  under  the  code,  it  is  not  neces- 
sary to  allege  all  the  circuhistances  under  which  the  offense  is  com- 
mitted to  entitle  the  plaintiff  to  make  proof  of  such  circumstances. 
Where  the  act  complained  of  is  alleged,  the  circumstances  under 
which  it  is  done  can  be  proved.  It  does  not  follow,  however,  that  it 
is  not  proper  to  plead  such  attending  circumstances.  It  is  proper  but 
not  necessary. 

359.  Privity  of  contract  need  not  be  shown  under  the 
code. — At  common  law  the  rule  was  that  there  must  be  some  privity 
of  contract  to  entitle  a  party  to  maintain  an  action.1"     The  rule  was 
otherwise  in  equity.     It  was  the  rule,  therefore,  that  at  law,  one  who 
was  not  a  party  to  the  contract  could  not  maintain  an  action  upon  it, 
although  it  might  have  been  made  for  his  benefit. 

In  equity  an  action  could  be  maintained  by  the  party  for  whose 
benefit  the  contract  was  made.  The  rule  in  equity  has  been  held,  in 
this  state,  to  be  the  rule  under  the  code.  In  this  class  of  cases  it  is 
necessary  to  allege  the  making  of  the  contract,  that  it  was  made  for 
the  plaintiffs  benefit,  and  that  he  has  accepted  of  the  contract  and 
acted  upon  it.  The  acceptance  must  take  place  before  the  contract  is 
rescinded  by  the  party  to  be  bound  by  it.  The  question  may  arise, 
when  the  promise  has  been  made  for  the  benefit  of  the  plaintiff,  upon 
a  sufficient  consideration  moving  from  a  stranger,  or  when  money  has. 
been  placed  in  the  hands  of  the  defendant  to  be  paid  to  the  plaintiff. 
If  the  defendant  has  voluntarily,  without  consideration,  accepted 
money  and  agreed  to  pay  it  to  the  plaintiff,  he  is  entitled  to  recover, 
and  need  not  show  privity  of  contract." 

(k)  Blis»'  Code  PI.,  ?  150.  Cloud  v.  Moorman,  18  Ind.  40;  Day  v. 

(1)  Iglehart's  Pr.  and  PI.  9,  \  8.  Patterson,  18  Ind.  114;  Lamb  v.  Don- 

(m)  Salmon  v.  Brown,  6  Blkf.  347;  ovan  19,  Ind.  40;  Shucraft  v.  David- 

Farlow  v.  Kemp,  7  Blkf.  544;  Britsell  son,  19  Ind.  98;  Ellston  v.  Scott,  19 

r.  Fryberger,  2  Ind.  176;  Conklin  v.  Ind.  290;  Beals  v.  Beals,  20  Ind.  163; 

Smith,  7  Ind.  107.  Duval  7-.  Melntosh,  23  Ind.  529;  Cross 

(n)  Ball    v.   Silvers,   17    Ind.   539;  v.  Truesdale,  28  Ind.  44;  Davis  r.  Col- 


248  PLEADINGS— THE    COMPLAINT.  [CHAP. 

360.  Fictions    must    not   be    pleaded. — Fictitious  allegations 
formed  a  very  essential  part  of  the  pleadings  at  common  law.     The 
statute  provides  that  "  all  fictions  in  pleading  are  abolished,  and  their 
use  forbidden  in  courts  of  justice  in  this  state.0 

361.  Defense  should  not  be  anticipated. — It  is  enough  for  the 
plaintiff  to  state  his  cause  of  action.     An  allegation  intended  to  antic- 
ipate a  defense  that  is  expected  to  be  made  adds  no  strength  to  the- 
complaint.     Such  matter  should  be  pleaded  by  way  of  reply. p 

EXCEPTIONS     TO     RULE    THAT     DEFENSE     MUST    NOT    BE 

ANTICIPATED. 

362.  Negligence. — To  the  rule  that  the  defense  must  not  be  an- 
ticipated there  are  seeming  exceptions.     We  have  seen  that  in  actions 
for  negligence  the  plaintiff  is  bound  to  allege  that  he  was  without 
fault.     Notwithstanding  this  rule,  the  defendant  may  set  up  any  neg- 
ligence on  the  part  of  the  plaintiff  that  would  amount  to  a  defense,  and 
the  requirement  that  the  plaintiff  shall  allege  that  he  was  not  guilty 
of  contributory  negligence  is  an  exception  to  the  rule  that  the  plaintiff 
should  not  anticipate  the  defense. q 

363.  Non-payment. — In  an  action  on  a  written  contract  to  pay 
money,  the  authorities  in  this  state  are  uniform  that  the  complaint 
must  allege  that  the  demand  is  unpaid/    These  authorities  would  seem 
to  violate  the  rule  under  consideration.     The  plaintiff  is  not  bound  to 
prove  the  negative  that  the  amount  cl&vmed  has  not  been  paid ;  but 
the  complaint  must,  the  authorities  say,  allege  a  breach  of  the  con- 
tract, and  in  thisTclass  of  cases  the  non-payment  is  the  breach.8 

It  is  not  necessary  that  the  complaint  should  aver,  in  direct  terms, 
that  the  amount  claimed  is  unpaid.  It  is  enough  if  equivalent  words 
are  used.  It  has  been  held  that  an  allegation  that  the  amount  is  due 

loway,  30  Ind.  112;   Marlctt  r.  Wilson.  (r)  Downey  v.Whittenberger,  60  Ind. 
30  Ind.  240;   Mathews  v.  Ritenour,  31  188;    Lawson  v.  Sherra,'  "21   Ind.  36:5: 
Ind.  31 ;  Jaqua  i:  Montgomery,  33  Ind.  Pace  v.  Grove.   26  Ind.  26:  Johnson  r. 
36;   Ritenour  r.  Mathews,  34  Ind.  279;  Kilgore.  39  Ind.  147;  Stafford  r.  Da- 
Miller  v.  Billingsly,  41  Ind.  489.  vidson,  47  Ind.  319:   Honorth  ».  Scarce, 
(o)  R.  S.  1881,  §  378.  29  Ind.  278  ;   Higert  r.  Th*  Trustees  of 
(p)  1   Bates'  Ohio  PI.  and  Par.  120;  Asbury  University.  53  Ind.  326;   Mi- 
miss'    Code   PI.,  ?  200;    Wilkinson  r.  chael    P.   Thomas,   27  Ind.  501;    Jgle- 
Applegate,     64    Ind.    98 ;     Iglehart's  hart's  Prac.  18. 

Prac.  17.  (s)  Lawson  v.  Sherry,  21  Ind.  363. 
(q)  1  Bates'  Ohio  PI.  and  Par.  120. 


XII.]  PLEADINGS — THK   COMPLAINT.  249 

J  » 

is  equivalent  to  an  allegation  that  it  is  unpaid,  arid  renders  the  com- 
plaint good  in  that  respect.*  The  rule  does  not  apply  to  actions  for 
tort  or  for  a  statutory  penalty.  (1) 

STATUTORY  RIGHTS. 

364.  Facts  must  be  stated. — Where  a  right  or  a  remedy  is  given 
by  statute  that  did  not  exist  at  common  law,  the  facts  necessary 
to  show  that  the  case  is  within  the  statute  must  be  alleged  in  the -com- 
plaint. Thus,  in  an  action  by  a  female  to  recover  damages  for  her 
own  seduction,  the  right  to  sue  is  given  by  statute  to  any  unmarried 
female." 

At  common  law,  the  female  could  not  maintain  the  action.  It  has 
been  held,  therefore,  that  she  must,  in  order  to  bring  herself  within 
the  statute,  allege  that  she  is  unmarried.  This  is  held  to  be  necessary 
to  constitute  her  cause  of  action." 

r^"  365.  Exceptions  in  the  statute. — It  was  a  rule  of  pleading  at 
common  law  that  if  an  exception  in  a  statute  appeared  in  the  enacting 
,vk.' clause,  the  declaration  must  show  that  the  plaintiff,  or  the  action 
brought,  was  not  within  the  exception;  but  where  the  exception  ap- 
peared  in  the  proviso,  it  was  not  necessary  to  notice  it  in  the  complaint. 
The  rule  is  thus  stated :  The  rule  usually  laid  down  upon  this  subject 
is  that  where  matter  is  introduced  by  way  of  exception  into  a  general 
clause,  the  pleader  must  show  that  the  particular  case  does  not  fall 
within  such  exception ;  whereas  a  proviso  need  not  be  noticed  by  him, 
but  must  be  pleaded  by  the  opposite  party.  The  difference  is,  where 
an  exception  is  incorporated  in  the  body  of  the  clause,  he  w"ho  pleads 
the  clause  ought  also  to  plead  the  exception  ;  but  when  there  is  a  clause 
for  the  benefit  of  the  pleader,  and  afterwards  follows  a  proviso,  which 
is  against  him,  he  should  plead  the  clause,  and  leave  it  to  the  adver- 
sary to  show  the  proviso. w 

Where  the  exception  is  in  a  proviso  or  a  subsequent  clause,  but  the 
exception  is  necessary  to  constitute  the  cause  of  action,  it  must  be 
set  out.* 

The  rule  is  the  same  under  the  code  as  at  common  law.  The  test 
is,  whether  the  exception  is  necessary  to  be  alleged  to  constitute  a  cause 

(t)  Higert  r.  The  Trustees,   etc.,  53         (v)  Thompson  r.  Young,  51  Ind.  599. 
.nd. 326;  Johnson  r.  KHsrore,  39  Ind.         (w)  Stephen    PI.   443;    Bliss'    Code 
147  ;  Downey  v.  Whittenberger,  60  Ind.     PI.,  §  202. 
188.  (i)  Bliss'  Code  PI.,  §  204. 

(u)  R.  S.  1881,  §  263.  (1)  Western     Union.    Tel.     Co.    r. 

Toung,  93  Ind.  118. 


250  PLEADINGS — THE    COMPLAINT.  [CHAT. 

of  action.     If  so,  it  must  be  averred,  no  matter  in  what  part  of  the 
statute  it  occurs. y 

And  where  the  jurisdiction  of  the  court  depends  upon  matters  stated 
in  the  statute,  the  facts  bringing  the  case  within  the  statute  must  be 
stated.2 

366.  Statute  of  frauds. — The  authorities  are  not  uniform  upon 
the  point  whether  the  plaintiff  must  show  by  affirmative  averments 
that  his  cause  of  action  is  not  within  the  statute.     In  this  state,  where 
the  contract  sued  on  is  not  shown  to  be  in  writing,  as  required  by  the 
statute  of  frauds,  it  will  be  held  bad  on  demurrer.8 

It  was  otherwise  at  common  law,  and  is  in  most  of  the  states.  The 
supreme  court  has  gone  farther,  and  held  that  where  the  complaint  fails 
to  show  that  the  contract  is  in  writing,  and  the  statute  provides  that 
certain  other  acts,  such  as  part  payment  or  delivery,  shall  be  sufficient, 
the  complaint  must  allege  that  such  acts  or  some  of  them  have  been 
done.b 

This  rule  requires  the  plaintiff  to  bring  himself  within  the  statute 
by  the  proper  averments,  and  the  presumptions  are  against  him  when 
the  contract  stated  is  one  governed  by  the  statute. 

367.  Statute   of  limitations. — The  exceptions  in  a  statute  of 
limitations  need  not  be  pleaded  in  this  state,  though  the  great  weight 
of  authority  elsewhere  is  the^otberway.     The  plaintiff  need  not  show 
that  he  is  within  any  of  the  exceptions,  even  where  the  complaint 
shows  upon  its  face  that  the  action  is  barred.     The  statute  of  limita- 
tions must  be  specially  pleaded  by  the  defendant,  and  the  exceptions 
are  proper  as  matters  of  reply.c    This  class  of  cases  is  within  the  rule 
that  the  defense  must  not  be  anticipated.     A  violation  of  the  rule  does 
not  render  the  complaint  bad  on  demurrer.     The  matter  can  only  be 
regarded  as  surplusage. 

CAPACITY    TO    SUE. 

368.  In  actions  by  executors  and  administrators  their  ca- 
pacity to  sue  need  not  be  alleged. — In  most  of  the  states  it  is 

(y)  1  Bates'  PI.  and  Par.  116,  citing  Toledo,  etc.,  R.  R.  Co.  v.  Pence,  G8  111. 

Faribault  v.  Hulet,  10  Minn.  30;   Bap-  524. 

tist  Church  v.  Utica,  etc.,  R.  R.  Co.,  6        (z)  Thomas  v.  Wood,  61  Ind.  132. 
Barb.  313;  Foster  v.  Hagan,  12  Barb.         (a)  Post,  \  514. 
547;    People  v.    Board   of  Police.    40         (b)   Krohn  r.  Bsmtz.  68  Ind.  277. 
Barb.  G26;  s.  c.,  16  Abb.  Pr.  337.  47:!;          (c)    Ante,  \  :',07  ;  post,  \  026. 


XII.]  PLEADINGS — THE    COMPLAINT.  251 

necessary,  in  an  action  by  an  administrator  or  executor,  that  the  com- 
plaint should  allege  such  facts  as  will  show  his  right  to  sue  as  such.d 

Formerly,  it  was  necessary  that  profert  of  the  letters  should  be 
made,  but  this  is  not  now  required,  even  where  the  authority  to  sue 
must  be  shown.  It  has  been  held  by  the  supreme  court  of  this  state 
that  where  an  action  was  brought  by  an  administrator  de  bonk  /ton,  the 
complaint  must  not  only  show  his  capacity  to  sue,  but  must  also  show 
who  was  the  original  administrator.6 

,  But  the  statute  governing  the  settlement  of  decedents'  estates  has 
materially  changed  the  rule.  It  is  not  necessary,  under  the  present 
statute,  that  an  executor  or  administrator  shall  either  make  profert  of 
his  letters  in  the  first  instance,  or  allege  facts  showing  his  right  to 
maintain  the  action.  Where  he  sues  as  administrator  or  executor,  the 
court  must  presume  that  he  has  been  duly  and  legally  appointed  as 
such,  unless  it  is  put  in  issue  by  a  special  answer,  under  oath.  The 
statute  provides  that,  "  in  any  suit  contemplated  by  the  preceding 
section,  it  shall  not  be  necessary  for  such  executor  or  administrator  to 
make  profert  of  his  letters,  nor  shall  his  right  to  sue  as  such  executor 
or  administrator  be  questioned,  unless  the  opposite  party  shall  file  a 
plea  denying  such  right,  with  his  affidavit  to  the  truth  thereof  there- 
unto attached  ;  in  which  case  a  copy  of  the  letters  issued  to  such  exec- 
utor or  administrator,  duly  authenticated,  shall  be  all  the  evidence 
necessary  to  establish  such  right." f 

The  "  suits  contemplated  by  the  preceding  section"  are  all  suits  that 
an  executor  or  administrator  may  maintain  as  such.8 

The  statute  dispenses  with  profert  of  the  letters  or  allegations  show- 
ing the  capacity  to  sue  in  all  actions  that  an  executor  or  administrator 
may  properly  institute,  admitting  that  he  has  been  duly  and  legally 
appointed.11  And  the  rule  applies  to  foreign  administrators.' 

The  statute  relating  to  foreign  executors  and  administrators  author- 
izes them  to  sue  as  other  executors  or  administrators,  but  requires  that 
their  letters,  granted  by  any  other  state  or  country,  shall  not  only  be 
duly  authenticated,  as  in  case  of  resident  executors  or  administrators, 
but  they  must  be  filed  in  tlie  court  in  whicli  such  suit  is  brought.* 

It  is  held,  however,  in  the  cases  cited,  that  the  letters  need  not  be 

(d)  Bliss'  Code  PI.,  §  264.  (i)  The  Jeffersonville,  etc.,  R.  R.  Co 

(e)  Vanblaricum  v.  Yeo,  2  Blkf.  322.  v.  Hendricks,  26  Ind.  228;    Matlock  v. 

(f)  R.  S.  1881,  I  2292.  Powell,   14   Ind.  378;    The   Jefferson- 

(g)  R.  S.  1881,  §2291.  ville,  etc.,  R.  R.  Co.  r.  Hendricks,  41 
(h)  JSTolte  v.  Libbert,  34   Ind.  163;  Ind.  48;  Upton  v.  Adams,  27  Ind.  432 

Kelley  v.  Love,  35  Ind.  106  ;  Wyant  v.         ( j)  R.  S.  1881,  §  2298. 
Wyant,  38  Ind.  48. 


252  PLEADINGS — THE    COMPLAINT.  [CHAP. 

filed,  as  required  by  the  statute,  before  or  at  the  time  the  suit  is  com- 
menced. It  may  be  done  after  the  sworn  answer  is  filed,  denying  their 
right  to  sue.  If  no  such  answer  is  filed,  their  right  to  sue  will  be  pre- 
sumed, as  in  other  cases,  and  the  letters  need  not  be  filed  at  any  time. 

369.  The  rule  in  -actions  by  guardians. — In  actions  brought 
by  guardians,  the  question  whether  the  right  of  the  guardian  to  sue 
must  be  shown  by  proper  averments  is  not  governed  by  statute  in  this 
state,  as  in  case  of  executors  and  administrators.     It  is  very  seriously 
questioned,  in  some  of  the  authorities,  whether  the  guardian  of  an  in- 
fant can  sue  in  his  own  name,  or  whether  the  suit  must  be  brought  in 
the  name  of  the  ward.k     It  was  held,  in  an  early  case  in  Indiana,  that 
the  guardian  might  sue  in  his  own  name ; !  but  the  case  is  based  upon 
the  ground  that  the  note  sued  on  was,  in  fact,  given  to  the  guardian 
personally,  the  words  "  guardian  of  the  estate  of  George  Rector,"  the 
ward,  being  regarded  as  descriptio  personce.     That  the  action  can  be 
maintained  in  the  name  of  the  infant,  by  next  friend,  there  can  be  no 
question,  and,  in  certain  cases,  guardians  are  expressly  authorized  to 
sue.1" 

And,  where  the  party  sues  as  guardian,  he  must  show  his  right  to 
sue,  by  alleging  that  the  person  he  claims  the  right  to  represent 
is  an  infant  or  an  insane  person,  as  the  case  may  be,  and  that  letters  of 
guardianship  have  been  granted  to  him  by  the  proper  court.11 

In  the  case  of  Maxedon  v.  The  State,  it  is  held  that  the  action  must 
be  brought  in  the  name  of  the  infant  by  next  friend,  and  not  by 
guardian. 

This  question  has  been  considered  in  another  place.0 

370.  In  actions  by  foreign  guardians,  right  to  sue  must  be 
shown. — The  right  of  a  foreign  guardian  to  sue  in  this  state  is  gov- 
erned by  a  special  statute. p 

Prior  to  this  statute,  it  was  held  that  the  granting  of  letters  of 
guardianship  in  another  state  gave  the  guardian  no  legal  right  to  sue 
in  Indiana.*1 

The  statute  provides  that  "  when  any  minor  or  other  person  shall  be 
under  guardianship  without  this  state,  the  foreign  guardian  may  file 
an  authenticated  copy  of  his  or  her  appointment,  in  the  office  of  the 

(k)  Pom.  Rem.,  ?  182.  Bliss'    Code   PI.,   §  267;    Maxedon    v. 

(1)  Shepherd  v.  Evans,  9  Ind.  260.  .  The  State,  24  Ind.  370. 

(m)  Ante,  §  81.  (o)  Ante,  g§  78,  79. 

(n)  Bears   v.  Montgomery.  46  Ind.         (p)   K.  S.  1881,  §  2540. 
544:    Shirley   v.  Hagar,    3    Blkf.  225;         (q)   Earl  v.  Dresser,  30  Ind.  11. 
M-cGilliciiddy  v.  1-orsyth,  5  Blkf.  435; 


XII.]  PLEADINGS — THE    COMPLAINT.  253 

clerk  of  the  circuit  court  of  the  county  in  which  there  may  be  per- 
sonal estate  or  assets  of  his  or  her  ward,  after  which  he  or  she  may  pro- 
ceed to  take  possession  of  said  personal  property  or  assets,  and  may  sue 
for  and  recover  possession  thereof  in  the  circuit  courts  of  this  state, 
and  execute  all  proper  and  necessary  receipts." 

Is  it  necessary,  under  this  statute,  that  the  foreign  guardian  shall 
show  affirmatively  in  his  complaint  that  he  has  complied  with  its  pro- 
visions ?  The  question  has  not  been  decided  by  the  supreme  court.  It 
was  presented  in  a  late  case,  but  the  decision  was  rendered  on  another 
point,  the  court  stating  expressly  that  the  point  here  presented  was  uot 
decided/  The  statute  is  imperative  that  the  matters  required  in  it 
shall  be  complied  with,  after  ichich  suit  may  be  brought.  As  the  right 
of  the  guardian  to  sue  depends  solely  upon  this  statute,  it  would  seem 
to  be  necessary,  in  order  to  show  that  he  has  capacity  to  sue,  that  the 
complaint  should  contain  the  averments  that  his  ward  is  such  a  person 
as  that  letters  might  be  granted,  that  letters  have  been  granted  to  him 
by  the  proper  court  in  the  state  of  his  residence,  and  the  facts  showing 
that  a  properly  authenticated  copy  of  such  letters  have  been  filed  in 
the  clerk's  office  of  the  county  where  the  property  or  assets  of  his  ward 
are  situate. 

371.  In  actions  by  or  against  corporations,  facts  showing 
corporate  existence  need  not  be  pleaded. — At  common  law,  it 
was  not  necessary  to  allege  the  corporate  existence  of  the  corporation, 
though  proof  of  its  existence  was  necessary  on  the  trial.  A  distinc- 
tion is  sometimes  made  between  domestic  and  foreign  corporations,  on 
the  ground  that  the  courts  will  take  judicial  notice  of  the  incorpora- 
tion of  a  domestic  corporation  created  by  public  statute.8 

It  is  insisted  by  the  learned  author  that,  under  the  codes,  a  corpora- 
tion created  by  private  statute,  or  a  foreign  corporation,  should  be  com- 
pelled to  show,  in  the  complaint,  that  it  is  legally  incorporated,  althoi:;-1) 
it  is  admitted  that  such  was  not  the  rule  at  common  law.1 

It  is  clearly  not  necessary  to  make  any  such  allegation,  where  the 
defendant  is  sued  upon  a  contract  made  with  the  corporation." 

This  is  upon  the  ground  of  estoppel.  The  defendant  having  con- 
tracted with  the  plaintiff  as  an  existing  corporation,  is  estopped  to  deny 

'(r)  Shook  v.  The  State,  53  Ind.  403.  The  Cincinnati,  etc.,  Co.,  14  Ind  89; 

(s)  Bliss'  Code  PI.,  %  24(5,  '247.  Blake  v.  Holley,  14  Ind.  383;   Meikel 

(t)   Angell  &  Ames  on  Corp.,  g  G32.  v.  The  German  Savings  Fund  Society. 

(u)  AVertu.  The  Crawfordsville,  etc.,  16  Ind.  181 ;  Vater  v.  Lewis,  36  Ind. 

Turnpike   Co.,  19  Ind.  242;    Jones  v.  288. 


254  PLEADINGS— THE    COMPLAINT.  [CHAP. 

its  existence.  He  may  show,  however,  that  since  the  contract  was  en- 
tered into  the  corporation  has  ceased  to  exist. v 

The  rule  is  well  settled  in  Indiana,  aside  from  this  question  of  es- 
toppel, that  it  is  not  necessary  for  either  a  domestic  or  foreign  corpora- 
tion to  allege  the  existence  of  the  corporation  in  the  complaint. w 

There  is  an  exception  to  the  rule  thus  clearly  established.  It  is  held 
that  where  a  corporation  sues  upon  a  subscription  or  other  contract , 
entered  into  before  its  organization,  but  with  a  view  to  such  orgaui/;,- 
tion,  the  corporation  must  allege  in  the  complaint  and  prove  upon  the 
trial  such  facts  as  will  show  that  it  has,  since  the  making  of  the  con- 
tract, become  a  legally  organized  corporation.* 

This  is  placed  upon  the  ground  that  the  organization  of  the  company 
is  a  condition  precedent  to  the  right  of  the  corporation  to  maintain  the 
action,  and  must  therefore  be  alleged  and  proved. 

SURPLUSAGE. 

372.  What  is  surplusage. — One  of  the  most  serious  defects  in 
the  pleadings  under  the  code  is  that  they  contain  much  unnecessary 
and  redundant  matter.     Surplusage  is  such  matter  as  may  be  stricken 
out  without  destroying  or  affecting  the  plaintiff's  cause  of  action.    The 
attempt  is  made  in  some  of  the  books  to  distinguish  between  redundant 
matter  and  surplusage.y     If  any  distinction  exists,  it  is  of  no  practical 
importance. 

Neither  surplusage  nor  redundant  matter  render  the  pleading  bad  on 
demurrer  ;  but  in  either  case  it  should  be  stricken  out  on  motion.2 

373.  What  is  material  in  a  complaint. — The  supreme  court 
has  laid  down  a  rule  by  which  to  determine  what  is  material  in  a  com- 
plaint.    "  The  test  what  is  material  in  the  complaint  will  be  furnished 
by  the  response  to  the  question,  what,  under  the  general  denial,  must 
the  plaintiff  prove  to  secure  a  verdict  in  his  favor  ?"  a 

(v)  The  President,  etc.,  of  Hartsville  Co.   v.    Craighead,   28   Ind.  274;    The 

University  v.  Hamilton,  34  Ind.  506;  Adams   Express   Co.   v.  Hill,  43  Ind. 

Sutherland  v.  The  Lagro,  etc.,  Plank  157;  K.  S.  1881,  \  3064. 

lload  Co.,  19  Ind.  192;  Meikel  v.  The  (xi  The    Indianapolis,   etc.,    Co.   v. 

German,   etc.,   Society,   16   Ind.   181;  Herkimer,  46  Ind.  142;  Chance  v.  The 

Snyder  v.   Studebaker,   19   Ind.  462;  Indianapolis,  etc.,  Gravel  Road  Co.,  "2 

Baker  v.  Neff,  73  Ind.  68.  Ind.  472. 

(w)  Harris  v.  The  Muskingum,  etc.,  (y)   Bliss'  Code  PL,  g  215. 

Co.,  4  Blkf.  267  ;  Richardson  »-.  The  St.  (z)   Pom.  Rern.,  \  515. 

Joseph  Iron  Co.,  5  Blkf.  146;  Heaston  (a)  Judith   r.  The  Trustees  of    V.n- 

r.  The  Cincinnati,  etc.,  R.  R.  Co.,  16  cennes  University,  23  Ind.  275. 
Ind.   275;    Cicero   Hygiene   Draining 


XII.]  PLEADINGS — THE    COMPLAINT.  255 

This  test  was,  no  doubt,  correctly  applied  in  the  case  cited,  but  it 
will  not  do  to  apply  generally.  The  complaint  must  not  only  show 
that  the  plaintiff  is  entitled  to  recover,  but  where  the  amount  of  his 
recovery  is  not  fixed  and  determined,  it  should  show  also  what  amount 
he  is  entitled  to  recover.  In  addition  to  this,  it  may  be  necessary,  in 
some  cases,  .to  aver  matters  of  aggravation,  in  order  to  furnish  the 
plaintiff  with  an  ample  remedy.  In  such  case,  not  only  are  the  bare 
facts  necessary  to  show  that  he  is  entitled  to  recover  material,  but  such 
matters  of  aggravation  can  not  be  regarded  as  surplusage.  If  the 
matter  can  be  stricken  out,  leaving  sufficient  averments  in  the  com- 
plaint to  entitle  the  plaintiff  to  his  full  and  complete  remedy  without 
its  aid,  it  is  surplusage,  and  should  not  be  pleaded. b 

374.  Effect  of  too  great  particularity  of  averment. — The 
plaintiff  frequently  involves  himself  in  more  serious  consequences  by 
alleging  too  much.  If  the  unnecessary  matter  pleaded  is  separated 
from  that  which  is  material,  and  could  be  stricken  out  without  injury 
to  the  cause  of  action,  the  injury  to  the  plaintiff  amounts  to  nothing 
more  serious  than  having  it  disregarded  or  stricken  out  on  motion. 
But  if  it  is  so  alleged  as  to  connect  it  with  the  material  averments,  in 
such  a  way  that  it  can  not  be  separated  from  it  and  stricken  out,  with- 
out destroying  the  cause  of  action,  the  plaintiff  must  make  his  proof 
correspond  with  his  complaint,  thus  requiring  additional  particularity 
in  proof  that,  but  for  a  bad  pleading,  would  be  unnecessary.6  The 
failure  or  inability  to  make  the  additional  proof  may  lose  him  his  case. 

The  case  of  Dickensheets  v.  Kaufman  was  an  action  against  the  de- 
fendants as  partners  alleging  the  partnership  and  the  firm  name.  There 
was  a  denial  of  the  partnership.  It  was  held  that  the  answer  tendered 
a  material  issue,  and  that  the  plaintiffs  were  bound  to  prove,  not  only 
that  the  defendants  were  liable  but  that  they  were  liable  as  partners. 
The  court  say:  "There  are  cases  where  unnecessary  particularity  of 
averment  will  require  a  corresponding  exactness  in  proof,  to  avoid  a 
variance.  This  is  so  whenever  the  unnecessary  matter  can  not  be 
stricken  out  without  destroying  the  right  of  action,  or  where  it  identifies 
the  contract  or  fact  averred.  In  the  case  before  us,  the  contract  sued 
on  is  pleaded  as  one  made  by  the  defendants  as  partners,  thus  distin- 
guishing it  from  any  joint  contract  of  theirs  not  made  as  partners.  If 
the  plaintiffs  might  support  the  averment  by  proof  of  a  joint  liability 

(b)   Bliss'  Code  PI.,  \  215.  436;  Bristow  v.  Wright,  1  Smith  Lead. 

(e)  Dickensheets    v.    Kaufman,    28  Cases,  901,  and  notes;  Bliss'  Code  PL, 

Ind.   2ol;    Graham   v.  Henderson,    35  §215. 
Ind.  195;  Tomlinson  v.  Collett,  3  Blkf. 


: , 


256  PLEADINGS — THE    COMPLAINT.  [CHAP. 

not  as  partners,  it  is  clear  that  this  form  of  pleading  might  be  used 
to  mislead.  It  seems  to  be  settled  that,  in  such  a  case  the  allega- 
tion and  the  proof  must  correspond." 

DUPLICITY. 

375.  What  will  amount  to  duplicity. — In  order  to  render  a 
pleading  double  two  causes  of  action  must  be  stated.     If  an  attempt 
is  made  to  charge  two  causes  of  action,  but  the  facts  pleaded  are  not 
sufficient,  to  constitute  both,  the  pleading  is  not  double.     So  much  as 
is  necessary  to  constitute  one  good  cause  of  action  is  material  and 
properly  pleaded;  all  other  matter  alleged,  short  of  an  independent 
cause  of  action,  is  surplusage  or  redundancy."1 

It  is  not  necessary,  however,  that  the  two  causes  should  be  so  stated 
as  to  withstand  a  demurrer  if  pleaded  separately.  If  the  causes  are 
substantially  stated  the  pleading  is  bad  for  duplicity.  In  the  case  of 
Swinney  v.  Nave  the  court  say:  "Duplicity  in  pleading  is  the  in- 
cluding, even  though  stated  with  technical  deficiency,  two  substan- 
tially good  causes  of  action  or  defenses  in  one  paragraph."  If  the 
causes  of  action  are  so  pleaded  that  they  would  be  held  good  after 
verdict,  they  should  be  regarded  as  within  the  rule. 

376.  Several  causes  of  action  may  be  stated  in  the  same 
complaint  in  different  paragraphs,  numbered. — The   statute 
expressly  authorizes  the  joinder  of  different  causes  of  action  in  the 
same  complaint.     They  can  not,  however,  be  pleaded  in  the  same  par- 
agraph.    They  must  also  be  such   causes  of  action   as  the   statute 
authorizes  to  be  joined.6 

The  joinder  of  more  than  one  cause  of  action,  in  the  same  para- 
graph of  complaint,  renders  it  objectionable  on  the  ground  of  du- 
plicity/ 

377.  Where  there  are  two  causes  of  action,  and  but  one 
relief,  causes  should  be  stated  in  separate  paragraphs. — 
It  sometimes  occurs  that  but  one  act  gives  more  than  one  cause  of  ac- 
tion.    Thus,  it  is  said,  "  Words  used  in  the  sale  of  a  horse,  which 
make  a  contract  of  warranty,  may,  with  the  addition  of  knowledge 

(d)  Thompson   v.  Oscamp,    19    Ind.  (e)   Ante,  §§  313,  320. 

399;   Swinney  v.  Nave,  22   Ind.  178;  (f)  Rogers   v.  Smith,    17   Ind.  323; 

Broher  v.  Goldsborougb,  44  Ind.  490,  Hendry  r.  Hendry,  32  Ind.  349;  Den- 

498;  Evans  v.  White.  53  Ind.  1 ;  Bliss'  man    r.  McMahin,    37  Ind.  241;    The 

Code   PI.,  §  294;    Porter   v.  Bracken-  Indiana  State  Board  of  Agriculture  v. 

ridge,  2  Blkf.  385;  Hay  v.  The  State,  Gray,  54  Ind.  91;   Kimble  v.  Christie, 

58  Ind.  337.  55  Ind.  140. 


XII.]  PLEADINGS — THE    COMPLAINT.  257 

of  their  falsity,  give  also  a  cause  of  action  for  the  deceit,  and  thus  the 
plaintiff  may  be  wronged  by  the  breach  of  the  contract  and  by  the 
fraud,  but  he  can  not  recover  for  both  causes ;  to  embody  them  in  one 
statement  would  be  duplicity,  and,  if  both  are  relied  on,  they  should 
be  separately  stated."8 

This  is  but  an  illustration  of  the  rule.  Where  therearein  fact  two 
causes  of  action,  though  they  may  grow  out  of  the  same  transaction, 
and  the  granting  of  one  remedy  would  bar  the  recovery  of  the  other, 
they  should  not  be  stated  in  the  same  paragraph.11 

378.  The  same  cause  of  action  may  be  differently  stated 
in  different  paragraphs. — In  most  of  the  states  having  codes  simi- 
lar to  ours,  it  has  been  held  that  the  clause  of  the  statute  requiring 
that  the  cause  of  action  shall  be  stated  witJiout  repetition,  excludes  the 
right  that  existed  at  common  law  of  stating  the  same  cause  of  action 
differently,  in  different  paragraphs,  on  the  ground  that  such  pleading 
would  render  one  paragraph  but  a  repetition  of  another.  If  the  cause 
of  action  were  the  same,  to  the  extent  that  the  same  facts  must  be 
stated,  there  could  be  no  occasion  for  different  paragraphs.  If  the  facts 
were  different,  it  is  difficult  to  see  how  one  could  be  a  repetition  of  the 
other.  In  the  states  where  this  rule  prevails,  the  plaintiff  must  elect 
upon  which  of  the  paragraphs  he  will  go  to  trial.' 

Mr.  Pomeroy  thus  states  the  rule  :  "  Since  the  reformed  pleading  re- 
quires the  facts  to  be  averred  as  they  actually  took  place,  it  does  not 
in  general  permit  a  single  cause  of  action  to  be  set  forth  in  two  or 
more  different  forms  or  counts,  as  was  the  familiar  practice  at  the  com- 
mon law.  The  rule  is  undoubtedly  settled  that,  under  all  ordinary 
circumstances,  the  plaintiff,  who  has  but  one  cause  of  action,  will  not 
be  suffered  to  spread  it  upon  the  record  in  different  shapes  and  modes, 
as  though  he  possessed  two  or  more  distinct  demands ;  and  when  he 
does  so  without  special  and  sufficient  reasons,  he  will  be  compelled, 
either  by  a  motion  before  the  trial,  or  by  an  application  and  direction 
at  the  trial,  to  select  one  of  these  counts  and  to  abandon  the  others. 
It  is  certain  that  different  causes  of  action  in  the  complaint  or  peti- 
tion must,  as  a  general  rule,  imply  as  many  distinct  causes  of  action 
actually  held  or  claimed  to  be  held  by  the  plaintiff." j 

(g)  Bliss' Code  PI.,  §  120.  155;    Nash   v.  McCauley,  9   Abb.  Pr. 

(h)   Pom.  Rem.,  $  452,  453,  456.  159;  Sipperly  v.  Troy  and  B.  R   R.,  9 

(i)  Bliss' Code  PI.,  §119;  Pom.  Rem.,  How.  Pr.  83  ;    Hillman  v.  Hillman,   14 

§576.  How.  Pr.  456;  Churchill  v.  Churchill, 

(j)  Citing  Sturgis  v.  Burton,  8  Ohio  9  How.  Pr.  552;   Ford  v.  Mattice,  14 

St.  215;  Muzzy  v.  Ledlie,  23  Wis.  445;  How.  Pr.  91 ;  Dunning  v.  Thomas.  It 

Lackey  v.  Vanderbilt,  10  How.  Prac.  How.  Pr.  281. 
17 


258  PLEADINGS — THE    COMPLAINT.  [CHAP. 

In  Indiana,  the  rule  is  clearly  the  other  way.  The  plaintiff  may 
state  the  same  cause  of  action  differently,  and  can  not  be  compelled  to- 
elect  upon  which  paragraph  he  will  go  to  trial. k 

In  Snyder  v*  Snyder  the  court  say :  "  Motions  to  strike  out  the  sec- 
ond paragraph  of  the  complaint,  and  to  compel  the  plaintiff  to  elect 
upon  which  paragraph  he  would  go  to  trial,  were  overruled.  These 
motions  were  supported  by  an  affidavit  showing  that  the  note  claimed 
to  have  been  reduced  to  judgment,  and  the  one  counted  upon  in  the 
second  paragraph,  was  the  same  note.  The  ends  of  justice  require 
that  a  party  should  be  permitted  to  state  his  case  in  various  forms  so 
as  to  correspond  with  the  proof,  and  thus  secure  his  rights  without  be- 
ing compelled  to  resort  to  a  second  suit In  those  states 

where  the  unwise  requirement  exists  compelling  parties  to  swear  to  the 
truth  of  the  claim  or  defense,  there  is  a  reason  for  the  proceeding 
sought  to  be  enforced  by  the  defendant  below,  but  there  is  none  here." 

379.  Inconsistent   causes   of  action   may  be  joined. — The 
rule  established  in  other  states,  that  the  plaintiff  can  not  state  the  same 
cause  of  action  differently  in  different  paragraphs,  is  followed  by  an- 
other, that  inconsistent  causes  of  action  can  not  be  joined  in  the  same 
complaint  even  in  separate  paragraphs.     Where  this  rule  prevails  the 
plaintiff  is  required  to  elect  between  the  two  causes  of  action.1 

But  this  is  not  the  rule  in  Indiana.  Not  only  may  the  same  cause 
of  action  be  differently  stated,  but  causes  of  action  that  are -entirely 
inconsistent  may  be  joined  in  the  same  complaint  in  different  para- 
graphs, and  the  plaintiff  can  not  be  compelled  to  make  an  election  be- 
tween them.m 

It  is  held  otherwise  where  the  inconsistency  appears  in  the  same 
paragraph." 

380.  One  cause  of  action  should  not  be  divided  up  and  set 
out  in  different  paragraphs. — Where  there  is  but  one  cause  of  ac- 
tion there  should  be  but  one  paragraph  of  complaint,  except  where  the 
same  cause  of  action  is  stated  in  different  ways  to  meet  the  proof.     A 
part  should  not  be  set  out  in  one  paragraph  and  part  in  another,  as, 
for  instance,  different  parts  of  one  entire  job  of  work  done  under  an 
entire  contract,  the  different  breaches  of  a  bond,  or  different  items  of  a 

(k)  Snyder  v.  Snyder,  25  Ind.  399;  St.  88,  91;  Supervisors  v.  O'Malley,  4& 
Stearnes  o.  Dubois,  55  Ind.  257.  Wis.  35;  Trumble».Doty:10OhioSt.  119. 

(1)   Bliss'  Code  PI.,  §  122;  1   Bates'         (m)   McMasters   v.    Cohen,    5    Ind. 
Ohio  PI  and  Par.  138;  Mich.  Sav.  and     174;  Snyder  v.  Snyder,  25  Ind.  399. 
Bldg.  Loan  Ass'n  v.  O'Connor,  16  Ohio         (n)   Armington     v.    The    State,    45 

Ind.  10. 


XII.]  PLEADINGS — THE    COMPLAINT.  259 

continuing  account.  It  is  not  always  easy  to  determine  whether  there 
is  one  or  more  causes  of  action.  No  matter  how  numerous  the  items 
may  be,  if  they  grow  out  of  one  and  the  same  contract,  although  they 
may  become  due  at  different  times,  or  are  for  work  done  or  goods  fur- 
nished at  different  times,  they  are  but  one  cause  of  action.  The  sin- 
gleness of  the  contract  may  be  regarded  as  a  safe  test  of  the  singleness 
of  the  cause  of  action.0 

381.  In  suing  on  bond  several  breaches  may  be  alleged  in 
the  same  paragraph. — Different  breaches  of  the  same  bond  may 
each  amount  to  a  separate  and  distinct  cause  of  action,  but  they  may 
nevertheless  be  joined  in  the  same  paragraph  of  complaint. p    But  for 
some  purposes  each  breach  assigned  is  regarded  as  a  separate  and  dis- 
tinct paragraph.1* 

382.  Action   on   mortgage   securing    several   notes. — The 
question  whether  it  is  necessary  in  an  action  to  foreclose  a  mortgage 
securing  several  notes,  to  plead  a  separate  paragraph  for  each  note,  has 
not  been  definitely   determined   in  this  state.     Where  the  action   is 
brought  to  foreclose  the  mortgage  against  parties  who  are  not  liable  to 
a  personal  judgment  on  the  notes  as  the  widow  and  heirs  of  the  mort- 
gagor, it  has  been  held  not  to  be  necessary  to  plead  more  than  one  para- 
graph/ 

This  must  necessarily  be  the  case.  As  there  can  be  no  judgment  on 
the  notes,  but  only  a  foreclosure  of  the  mortgage,  there  is  but  one 
cause  of  action  to  be  stated.  But  it  is  quite  different  where  a  personal 
judgment  may  be  taken  on  each  of  the  notes.  In  that  case  the  notes 
constitute  the  indebtedness,  and  the  mortgage  is  but  an  incident  to  the 
notes.  They  constitute  distinct  causes  of  action  as  much  as  if  they 
were  not  secured  by  mortgage. 

It  would  seem,  for  these  reasons,  to  be  the  correct  rule  that  each 
note  should  be  pleaded  in  a  separate  paragraph.8  No  necessity  exists 
for  filing  more  than  one  copy  of  the  mortgage,  as  it  may  be  made 
part  of  each  paragraph  by  reference. 

(o)  Bliss'  Code  PI.,  §  118;   Bender-  Badger  v.  Titcomb,  26  Am.  Dec.  611, 

nagle  v.  Cocks,  19  Wend.  207 ;  Secor  and  note  (15  Pick.  409). 
v.  Sturgis,    16   N.  Y.  548;    Draper   v.         (p)  Richardson  v.  The  State,  55  Ind. 

Stouveneal,  38  N.  Y.  219 ;    Farming-  381 ;  Vol.  3,  p.  66. 
ton  v.  Payne,  15  Johns.  432;  Fisk  v.         (q)  Reno  v.  Tyson,  24  Ind.  56;  Cal- 

Tnnk,  12  Wis.  276;  Stevens  v.  Lock-  burn  v.  The  State,  47  Ind.  310.^ 
wood,  28  Am.  Dec.  492,  and  note  (13        (r)  Collins  v.  Frost,  54  Ind.  242. 
Wend.  644);   Guernsey  v.  Carver,  24         (s) Firestone  v.  Klick,  67  Ind.  309. 
Am.  Dec.  60,  and  note  (8  Wend.  492); 


260  PLEADINGS — THE  COMPLAINT.  [CHAP. 

383.  Each  paragraph  must  be  good  within  itself. — The  rule 
that  different  causes  of  action  may  be  joined  in  different  paragraphs  of 
complaint,  makes  each  paragraph,  in  effect,  a  complaint.  This  being 
true,  each  paragraph  must  be  a  good  complaint,  or  it  will  be  subject  to 
demurrer.  One  paragraph  can  receive  no  aid  from  another  even  by  a 
direct  reference  to  it,  nor  can  a  part  of  one  be  made  part  of  another  by 
a  direct  allegation  that  it  is  made  a  part.  This  rule  applies  to  all 
pleadings  authorized  by  the  code.1 

The  rule  that  one  paragraph  can  not  include  within  it  the  averments 
of  another  paragraph  is  strictly  enforced.  It  has  been  held  that,  in 
an  action  to  foreclose  a  mortgage,  the  description  of  the  laud  can  not  be 
included  in  a  paragraph  by  reference  to  the  description  in  another  and 
a  direct  averment  that  it  is  referred  to  and  made  a  part.  There  is  an 
apparent  exception  to  the  rule  that  alloAvs  one  copy  of  a  written  instru- 
ment that  is  the  foundation  of  the  action  to  be  referred  to  and  made 
part  of  each  paragraph,  making  it  unnecessary  to  file  a  copy  with  each." 

And  the  rule  has  been  extended  so  far  as  to  allow  a  written  instru- 
ment filed  with  the  complaint  to  be  referred  to  and  made  part  of  an 
answer  without  requiring  an  additional  copy  to  be  filed/ 

It  has  also  been  held  that  a  cross-complaint  may  include  a  written 
instrument  filed  with  the  original  complaint  by  a  mere  reference  to  it 
without  filing  a  copy.w 

There  is  one  case  where  the  ruling  was  apparently  the  other 
way.* 

This  case  is  distinguished  in  the  case  of  Sidener  v.  Davis,  on  the 
ground  that  the  written  instrument  filed  with  the  complaint  was  not 
referred  to  in  the  cross-complaint.  The  whole  reasoning  in  the  earlier 
case  shows,  however,  that  the  court  did  not  so  regard  the  force  of  the 
decision.  It  was  expressly  held  that  the  statute  imperatively  required 
that  the  written  instrument  must  be  filed  with  the  cross-complaint, 
notwithstanding  the  same  instrument  was  filed  as  a  part  of  the  origi- 
nal complaint.  There  is,  in  fact,  no  difference  in  that  and  the  case  of 
Sidener  v.  Davis. 

(t)  Leabo  v.  Detrick,  18   Ind.  414;  Smith  v.  Little,  67  Ind.  549;  Entsmin- 

Day  v.  Vallette,  25  Ind.  42;   Mason  v.  ger  v.  Jackson,  73  Ind.  144. 

Weston,  29  Ind.  561  ;  Potter  v.  Earn-  (u)  Peck   v.  Hensley,  21  Ind.  344; 

est,  45  Ind.  416;  McCarman  v.  Coch-  Maxwell  v.  Brooks,  54  Ind.  98. 

ran,  57  Ind.  166;  Silvers  v.  The  June-  (v)  Patterson   v.  Vaughan,  40  Ind. 

tion  R.  R.  Co.,  43  Ind.  435;.  Clarke  v.  253. 

Featberston,  32  Ind.  142;  Woodward  (w)  Sidener  v.  Davis,  69  Ind.  336; 

v.  "Wilcox,  27  Ind.  207;  The  Pennsyl-  Patterson   v.  Vaughan,   40   Ind.  253; 

vania  Co.  v.  Holderman,  69  Ind.  18;  Post,  §422. 

(x)  Campbell  v.  Routt,  42  Ind.  410. 


XII.]  PLEADINGS— THE  COMPLAINT.  261 

In  the  latter  case  the  written  instrument  was  not  made  a  part  of 
the  cross-complaint.  It  does  nothing  more  than  refer  to  the  written 
instrument  as  that  "  of  which  a  copy  is  filed  with  the  complaint,"  and 
the  reasoning  of  the  other  case,  that  is  attempted  to  be  distinguished  from 
it,  was  based  upon  the  assumption  that  the  instrument  named  in  the 
cross-complaint  was  the  same  filed  with  the  complaint,  and  upon  that 
assumption  it  was  held  that  the  fact  of  its  being  on  file  would  not 
make  the  cross-complaint  good. 

To  say  that  the  instrument  upon  which  the  cross-complaint  was 
founded,  was  the  same  "  of  which  a  copy  was  filed  with  the  com- 
plaint," did  not  make  it  a  part  of  the  cross-complaint.  There  should 
be  a  direct  allegation  making  the  written  instrument  a  part  of  the 
pleading. 

CERTAINTY. 

384.  The  complaint  should  be  certain. — Pleadings  should  be 
certain  as  to  time  and  place,  but  it  is  not  always  necessary  to  the  suffi- 
ciency of  the  complaint  that  it  should  be  certain  as  to  either.     There 
are  cases,  however,  where  the  failure  to  state  either  correctly  will 
render  the  complaint  bad  on  demurrer,  or  defeat  the  action  on  the  trial 
if  the  time  or  place  should  not  be  proved  as  alleged.     It  is  important, 
therefore,  for  the  pleader  to  determine  in  advance,  whether,  in  the 
particular  case,  certainty  of  time  or  place  is  essential  either  to  the 
sufficiency  of  his  complaint  or  his  final  recovery.     Whether  they  are 
strictly  necessary  or  not  a  careful  and  correct  statement  of  time  and 
place  is  a  mark  of  the  good  pleader. y 

385.  Certainty  as  to  time. — As  a  rule,  certainty  as  to  time  is  not 
essential.     There  are  cases,  however,  where  time  is  said  to  be  of  the 
essence  of  the  contract.     In  such  cases,  the  time  must  be  correctly 
stated.     Thus,  in  an  action  against  an  indorser  of  a  promissory  note, 
payable  in  a  bank  in  this  state,  it  is  necessary  that  a  demand  shall  be 
made  and  notice  given. 

There  are  well  established  rules  regulating  the  time  when  the  de- 
mand shall  be  made  and  notice  given,  in  order  to  hold  an  indorser.2 
In  order  to  recover  against  the  indorser,  the  complaint  must  show  that 
the  demand  and  notice  were  within  these  rules.  In  matters  of  descrip- 
tion of  written  instruments,  as  bearing  certain  dates,  great  care  should 

(y)  Armstrong  v.  Cook,  30  Ind.  22.  172;  Patterson  v.  Carroll,  60  Ind.  128; 

(z)  Story   on   Prom.   Notes,,  $  200,  Mix  v.  The  State  Bank,  13  Ind.  521; 

201,  210,  227,  230;  Pollard  v.  Bowen,  Ford  v.  Booker,  53  Ind.  395. 
57  Ind.  232;  Griffin  v.  Kemp,  46  Ind. 


262  PLEADINGS — THE    COMPLAINT.  [CHAP. 

be  taken,  as  the  failure  to  describe  them  correctly  may  prevent  their 
being  used  as  evidence  on  the  trial.  These  are  but  illustrative  cases, 
showing  the  necessity  for  certainty  in  a  class  of  actions.  The  rule  ap- 
plies to  all  cases  where  the  time  when  a  thing  is  done  determines  the 
right  of  recovery. 

386.  Certainty  as  applied  to  place. — Where  the  right  to  main- 
tain the  action  in  the  county  where  it  is  commenced  depends  upon  the 
place  where  the  cause  of  action  arose,  certainty  of  place  becomes  ma- 
terial, and  must  be  so  stated  as  to  give  the  court  jurisdiction.     The 
causes  of  action  that  must  be  commenced  in  the  county  where  they 
arose  are  set  out  in  the  statute. a 

Actions  to  recover  real  estate  are  required  to  be  commenced  in  the 
county  where  the  real  estate  is  situate.  In  this  class  of  cases  the  place 
where  the  real  estate  is  situate  should  be  alleged  to  be  in  the  county 
where  the  action  is  commenced,  and  the  place  must  be  truly  stated. 
The  failure  to  make  this  allegation  is  not  necessarily  fatal,  however, 
where  the  court  is  one  of  general  jurisdiction.  As  the  jurisdiction  of 
the  court  over  the  subject-matter  will  be  presumed,  it  need  not  affirm- 
atively appear  on  the  face  of  the  complaint.b 

The  presumption  of  jurisdiction  supplies  the  place  of  the  averment 
that  the  subject-matter  of  the  action  is  in  the  proper  county ;  but  where 
the  complaint  affirmatively  shows  that  the  real  estate  is  in  another 
county,  or  is  not  in  the  county  where  the  action  is  commenced,  it  will 
be  bad  on  demurrer.  It  has  been  held  in  a  number  of  cases  that  the 
section  of  the  statute  requiring  actions  to  recover  real  estate  to  be 
brought  in  the  county  where  the  real  estate  is  situate  is  one  of  jurisdic- 
tion and  not  of  venue,  and  therefore  a  complaint  showing  that  the  ac- 
tion is  brought  in  the  wrong  county  is  subject  to  demurrer/ 

In  actions  commenced  in  courts  of  limited  jurisdiction  there  is  no 
such  presumption,  and  the  facts  showing  the  jurisdiction  must  be  af- 
firmatively alleged. d 

387.  Complaint  need  not  allege  a  demand  at  any  particu- 
lar place  in  actions  on  bills  and  notes. — The  statute  provides 
that,  "  in  any  action  or  defense  founded  upon  a  bill  or  note  or  other 

(a)  R.  S.  1881,  \  307;  Ante,  §  187  et  Parker  v.  McAlister,  14  Ind.  12;  The 
seq.  New  Albany  and  Salem  E.  K.  Co.  v. 

(b)  Brownfield   v.   Weicht,   9   Ind.  Huff,  19  Ind.  444;   Vail   v.  Jones,  31 
394;    Kagan  v.  Haynes,  10  Ind.  348;  Ind.  467;  The  Board,  etc.,  v.  Markle, 
Godfrey  v.  Godfrey,  17  Ind.  6 ;  Loeb  46  Ind.  96. 

r.  Mathis,  37  Ind.  306.  (d)  The   Board,  etc.,  v.  Markle,   46 

(c)  Loeb  v.    Mathis,   37   Ind.    306 ;     Ind.  96. 


Xir.]  PLEADINGS — THE    COMPLAINT.  263 

contract  for  the  payment  of  money  at  a  particular  place,  it  shall  not 
be  necessary  to  aver  or  prove  a  demand  at  the  place,  but  the  opposite 
party  may  show  a  readiness  to  pay  such  demand  at  the  proper  place."6 

This  statute  must  be  taken  as  a  rule  of  pleading.  It  does  not  follow 
from  the  fact  that  an  affirmative  allegation  in  the  complaint,  of  a  de- 
mand at  the  place,  is  dispensed  with,  that  the  party  may  not  suffer  at 
least  partial  defeat,  if  the  money  was  at  the  place  ready  for  pay- 
ment when  due.  The  plaintiff,  it  is  true,  need  not  allege  or  prove  a 
demand  in  the  first  instance ;  but  if  the  defendant  pleads,  by  way  of 
answer  and  proves  on  the  trial  that  he  was  ready  with  the  money  at 
the  place  and  time  fixed  in  the  contract,  this  would  involve  the  plaint- 
iff in  the  costs  of  the  action/ 

Prior  to  the  enactment  of  this  statute,  it  was  held  that  the  complaint 
must  aver  a  demand  at  the  place.g 

But  these  cases  have  been  expressly  overruled  by  the  later  cases. 
The  statute  only  applies,  in  case  of  notes  governed  by  the  law-mer- 
chant, to  the  maker  of  the  note.  A  demand  at  the  time  and  place  of 
payment  must  be  made,  notwithstanding  the  statute,  iu  order  to  fix 
the  liability  of  an  indorser.  His  promise  to  pay  is  conditional,  and 
only  renders  him  liable  on  demand  and  failure  to  pay  by  the  maker. 
It  is  necessary,  therefore,  in  that  class  of  cases,  that  a  demand  on  the 
maker,  at  the  proper  time  and  place,  should  be  alleged.11 

388.  Certainty  required  in  averments  of  subject-matter.— 
The  certainty  required  in  averments  relating  to  the  subject-matter 
must  necessarily  depend  very  much  upon  the  nature  of  the  case. 
The  statements  should  be  sufficiently  certain  to  convey  clearly  to  the 
court  and  to  the  opposite  party  "every  fact  material  to  the  plaintiff's 
recovery,  and  disclose  the  cause  of  action  so  that  the  pleadings  and 
judgment  thereon  will  be  sufficient  to  bar  a  second  action  on  a  plea  of 
res  adjudicate.  It  is  said  in  a  late  work  on  practice,  that  the  require- 
ment of  the  code  that  the  cause  of  action  shall  be  so  stated  as  to  "  en- 

(e)  R.  S.  1881,  §  368.  Church  v.  Moore,  1  Ind.  289;  English, 

(f)  The  Indiana,  etc.,  R.  R.  Co.  v.  Adm'r,  r.  The  Board  of  Trustees  of  the 
Davis,  20  Ind.  6;  The  Eaton,  etc.,  R.  Indiana    Asbury    University,    6    Ind. 
R.  Co.  v.  Hunt,  20  Ind.  457;  McCul-  437;    The    Marion,  etc.,    R.  R.  Co.   r. 
lochr.  Cook,  34  Ind.  290;   Washington  Dillon,  7  Ind.  404;  The  Marion,  etc.. 
t>.  Planters'  Bank,  28  Am.  Dec.  333  (1  R.  R.  Co.  v.  Lomax,  7  Ind.  648;  The 
Howard,  230);    McNarry   v.  Bell,  24  Marion,  etc.,  R.  R.  Co.  v.  Hodge,  9  Ind. 
Am.  Dec.  454;  Wolcott  v   Van  Sant-  163. 

voort,  8  Am.  Deo.  396,  and  note.  (h)  McCulloch  v.  Cook,  34  Ind.  290. 

(g)  The  Wardens,  etc.,  of  St.'  James' 


264  PLEADINGS — THE    COMPLAINT.  [CHAP. 

able  a  person  of  common  understanding  to  know  what  is  intended,"  is 
impracticable,  as  no  one  but  a  lawyer  can  understand  pleadings.' 

This  is  the  reverse  of  complimentary  to  the  profession.  There  is  no 
reason  why  a  pleading  can  not  be  so  worded  as  to  be  understood  by  a 
man  of  common  understanding  as  well  as  any  other  paper.  The  fail- 
ure to  state  the  facts  that  they  may  be  so  understood  is  a  mark  of  a 
bad  pleading  as  well  as  a  plain  violation  of  the  code. 

CERTAINTY   OF   DESCRIPTION. 

389.  Of  personal  property. — The  decided  cases  show  great  lib- 
erality in  the  requirement  of  certainty  in  matter  of  description.     This 
is  particularly  noticeable  in  descriptions  required  in  actions  to  recover 
personal  property .j 

The  rule  is  that  the  description  must  be  sufficient  to  identify  the 
property. 

390.  In  actions  relating  to  real  estate. — The  rule  as  to  the 
certainty  required  in  alleging  the  place  where  real  estate  is  situate  has 
been  considered.     As  a  question  of  jurisdiction,  it  is  not  necessary  to 
show  that  it  is  in  the  county  where  the  action  is  commenced ;  k  but 
there  must  be  such  a  description  of  the  property,  to  constitute  a  cause 
of  action,  that  the  sheriff,  with  the  assistance  of  a  surveyor,  can  find 
the  real  estate  and  determine  its  boundaries.1     And  to  render  the  com- 
plaint sufficient,  in  this  respect,  it  must,  either  by  direct,  averment  or 
by  the  description  set  out,  show  in  what  county  the  real  estate  is  situate, 
except  where  the  court  will  presume  it  to  be  in  the  county  as  a  juris- 
dictional  fact.     Where  the  description  contained  in  any  written  instru- 
ment, made  the  foundation  of  an  action,  is  defective  and  uncertain,  the 
description  may  sometimes  be  made  certain  by  proper  averments  in  the 
complaint.1"     And  in  such  case  the  allegations,  making  the  description 
certain,  are  necessary  to  make  the  complaint  sufficient. 

(i)  Iglehart's  Prac.  13,  §  17.  etc..  Turnpike  Co.  r.  Eoberts,  3o  Ind. 

(j)  Heddy    v.    Fullen,    1    Blkf.   51;  '24(3;    Bowen    v.  Wood,    35   Ind.  268; 

Minchrod   v.  Windoes,   29   Ind.   288;  White  r.  Hyatt,  40  Ind.  385;  Struble 

Onstatt   v.  Ream,  30  Ind.  259;    Ents-  v.  Neigh  bright,  41  Ind.  344 ;   Cochran 

minger  v.  Jackson,  73  Ind.  144;  Tin-  v.    Utt,   42    Ind.   267;    Rosenbaum   v. 

dall  v.  Wasson,  74  Ind.  495.  Schmidt,    54   Ind.   231 ;    Simonton   v. 

(k)  Ante,  ?  386.  Thompson.    55    Ind.   87;    Halstead   v. 

(1)  Whittlerea  r.  Beall,  5  Blkf.  143;  The  Board  of  Comm'rs  of  Lake  Co., 

Magee  v.  Sanderson,  10  Ind.  261;  Nolte  56  Ind.  363;  Murphy  r.  Hendricks,  57 

v.  Libbert,  34  Ind.  163;   The  Jordan  Ind.  593;  English  r.  Roche.  6  Ind.  62. 

Ditching,  etc..  Ass'n   v.  Wagoner,  33  (m)  Halstcad     v.     The     Board      of 

Ind.  50;  The  Etchison  Ditching  Ass'n  Comm'rs  of  Lake  Co.,  56  Ind.  363. 
v.  Jarrell,  33  Ind.  131  ;  The  Harrison, 


XII.]  PLEADINGS — THE    COMPLAINT.  265 

The  rule  does  not  apply  where  the  description  in  the  mortgage  or 
deed,  which  is  the  foundation  of  the  action,  is  so  defective  as  to  render 
it  void.  In  such  case,  the  deed  or  mortgage  conveys  no  title  or  creates 
no  lien,  and  no  averments  of  extrinsic  matter  can  aid  it." 

The  complaint  can  not  change  or  vary  the  description,  by  additional 
averments?0 

The  only  office  that  can  be  performed  by  allegations  of  extrinsic  mat- 
ter in  this  class  of  cases,  is  to  make  certain  that  which  is  uncertain, 
and  the  written  instrument  must  bear  on  its  face  the  matter  by  which 
its  uncertainty  can  be  cured. p 

If  the  deed  or  mortgage,  after  an  imperfect  description,  refers,  for  a 
better  description,  to  a  certain  other  deed,  properly  identifying  it,  it  is 
held  that  the  deed  thus  referred  to  is,  in  effect,  incorporated  into  the 
one  making  the  reference,  and,  if  the  two  together  render  a  sufficient 
description,  it  is  good.q 

In  the  case  of  Halstead  v.  The  Board  of  County  Comm'rs  of  Lake 
County,  the  rule  as  to  the  right  of  the  plaintiff  to  aid  a  defective  de- 
scription; by  averments  in  the  complaint,  was  stated  thus  :  "  When 
the  description  of  the  mortgaged  property,  contained  in  the  mortgage, 
is  so  indefinite  as  to  render  the  mortgage  inoperative  and  void,  no  al- 
legations in  a  complaint  upon  the  mortgage  can  make  such  complaint 
good.  But  where  there  is  such  a  description  in  the  mortgage  as  will 
render  it  operative  to  convey  the  property  to  the  mortgagee,  but  not 
so  definite  as  to  enable  a  third  person,  in  making  sale  of  the  property 
(an  officer,  for  example),  to  specify  the  exact  boundaries,  in  such  case, 
if  the  complaint  upon  the  mortgage  alleges  the  true  boundaries,  the 
complaint  will  be  good.  Proof  of  the  allegations  may  be  made,  and, 
upon  such  proof,  the  court,  in  its  decree,  may  specify  the  true  bounda- 
ries, and  the  officer  may  sell  and  convey  accordingly." 

No  test  is  given,  in  any  of  the  authorities,  by  which  to  determine 
whether  a  case  falls  within  one  or  the  other  branches  of  the  rule. 
Each  case  depends  upon  the  facts  stated,  and  the  notions  of  the  court 
as  to  the  extent  of  the  uncertainty  in  the  description  in  that  particular 
case. 

A  rule  that  can  not  be  made  applicable  to  all  cases  arising  under  it, 
is  necessarily  unsatisfactory,  and  this  one  is  unusually  so,  as  there  is 
absolutely  no  test  by  which  to  determine  whether  any  case  is  within  it 
or  not.  Where  a  deed  or  other  written  instrument  is  referred  to  for  a 

(n)  Halstead  v.  The  Board,  etc.,  56  (o)  Baldwin  v.  Kerlin,  46  Ind.  426. 

Ind.  363,  373;  Murphy  v.  Hendricks,  (p)  Howell  v.  Zerbee,  26  Ind.  214. 

57   Ind.  593;   Dingman   v.    Kelley,    7  ^q)  White  v.  Hyatt,  40  Ind.  385. 
Ind.  717. 


2G6  PLEADINGS — THE    COMPLAINT.  [CHAP. 

description,  the  complaint  should  aver  the  existence  of  such  deed  or 
written  instrument,  that  the  real  estate  described  therein  is  the  same 
mentioned  in  and  intended  to  be  conveyed  by  the  deed  which  is  the 
foundation  of  the  action,  and  the  description  in  the  writing  should  be 
fully  and  accurately  set  out.r  Thus,  the  identity  of  the  land  and  the 
writing  referred  to  is  fixed,  and,  if  it  contains  a  good  description,  it  is 
made  by  such  averments  a  part  of  the  instrument  sued  on.  Again,  if 
the  land  should  be  described  as  the  same  sold  by  A.  to  B.  on  a  certain 
day,  the  complaint  should  aver  the  fact  that  A.  sold  to  B.  certain  real 
estate  on  the  day  named,  giving  its  description,  and  that  the  real  estate 
described  is  the  same  real  estate  mentioned  in  and  intended  to  be  con- 
veyed by  the  instrument  in  suit.  It  has  been  held,  also,  that  where 
the  mortgage  described  the  real  estate  as  lots  in  Carroll  county,  In- 
diana, numbering  them,  on  which  there  was  situated  a  paper-mill,  and 
the  complaint  alleged  that  the  mortgagors  never  at  any  time  owned 
any  other  lots,  in  that  county  or  elsewhere,  on  which  was  a  paper-mill, 
the  complaint  was  good.3 

The  authorities  bearing  on  the  question  are  very  numerous  in  this 
state.  They  have  been  cited  in  the  foot-note.  If  one  can  be  found, 
the  facts  of  which  are  like  the  case  the  reader  may  have  in  hand,  it 
will  no  doubt  be  good  authority.  If  not,  there  is  very  little  in  the 
general  rule  laid  down  that  can  aid  him. 

391.  Monuments  control  distances. — If  the  monuments  fixed 
by  the  description  differ  from  the  boundaries  shown  by  the  measure- 
ments, the  monuments  must  control.     The  rule  and  the  reasons  upon 
which  it  is  founded  are  thus  stated  by  the  supreme  court:  "  The  rule 
of  law  is,  in  such  cases,  that  monuments,  fixed,  natural  or  artificial  ob- 
jects, cognizable  by  the  senses,  control  distances.     The  reason  of  this 
rule  is  said  to  be,  and  it  is  certainly  a  good  one,  that  parties  are  sup- 
posed to  inspect  land  before  or  at  the  time  of  purchase,  in  which  in- 
spection they  can  easily  recognize  visible  monuments,  and  thus  acquire 
a  definite  idea  of  the  boundaries  of  the  land,  which  they  could  not  ac- 
quire by  measuring  distances  with  the  eye."' 

The  quantity  of  land  named  in  the  deed  or  mortgage  is  controlled 
by  the  boundaries,  and  general  are  governed  by  particular  descrip- 
tions. 

392.  In  actions  for  specific   performance  of  contracts  to 

(r)  White  v.  Hyatt,  40  Ind.  385.  (t)  Simonton  v.  Thompson,  55  Ind. 

(s)   Bowen  v.  Wood,  35  Ind.  268.  87,  93;  The  Buffalo,  etc.,  R.  K.  Co.  v. 

Stigler,  61  N.  Y.  348. 


XII.]  PLEADINGS — THE   COMPLAINT.  267 

convey  real  estate. — The  same  particularity  does  not  seem  to  be 
required  in  actions  for  specific  performance  as  in  actions  relating  to  real 
estate.  The  rule  is,  that  "  where  the  description,  so  far  as  it  goes,  is 
consistent,  but  does  not  appear  to  be  complete,  it  may  be  completed  by 
extrinsic  parol  evidence,  provided  a  new  description  is  not  introduced 
into  the  body  of  the  contract ; "  and  the  complaint  must  contain  the 
averments  of  such  extrinsic  matter  as  may  be  necessary  to  render  the 
description  complete.11  But  the  averments  of  the  complaint  can  not 
substitute  a  new  description,  or  change  the  one  contained  in  the  con- 
tract, as  far  as  it  goes/ 

393.  In  actions  to  enforce  mechanics'  liens. — The  rule  in 
this  class  of  cases  seems  to  be  that,  so  far  as  the  notice  is  concerned,  it 
must  contain  such  a  description  of  the  property  as  will  clearly  identify 
it.  More  liberality  has  been  shown  in  passing  upon  the  sufficiency  of 
the  descriptions  contained  in  the  notice  than  would  be  expected. 
Thus  it  has  been  held  that  a  notice  describing  the  property  as  "  part 
of  lot  No.  110  and  the  improvements  and  buildings  thereon,"  without 
designating  what  part,  is  sufficient. w 

In  an  earlier  case,  a  notice  describing  the  property  as  "  the  following 
real  estate  and  the  improvements  thereon,  belonging  to  the  city  of 
Crawfordsville,  described  as  follows  :  part  of  lot  No.  110  in  the  orig- 
inal plat  of  the  city  of  Crawfordsville,"  was  held  bad  for  uncertainty.1 

The  latter  case  does  not  overrule  the  former,  but  distinguishes  it. 

The  distinguishing  mark  between  the  two  cases  will  not  be  easily  de- 
tected. The  court  say  it  is  the  fact  that  in  the  notice  held  to  be  good 
the  notice  described  that  part  of  the  lot  on  which  the  city  hall  stood. 
There  does  not  seem  to  have  been  any  allegation  in  the  complaint 
making  the  description  certain,  by  showing  on  what  part  of  the  lottthe 
city  hall  stood.  Without  such  an  averment  the  complaint  must  be 
held  bad,  whatever  might  be  said  of  the  notice.  It  was  so  held  in  the 
City  of  Crawfordsville  v.  Barr,  supra.  In  the  latter  case  the  court 
say :  "  We  consider  the  notice  in  this  case  as  substantially  an  equiva- 
lent one  to  the  notice  contained,  and  held  by  this  court  to  be  sufficient, 
in  the  case  of  the  City  of  Crawfordsville  v.  Johnson,  51  Ind.  397,  and 
its  sufficiency  can,  we  think,  be  fairly  sustained  upon  the  theory  that 

(u)  Colerick  v.  Hooper,  3  Ind.  316;  (w)  The  City  of  Crawfordsville  v. 

Torr  v.  Torr,  20  Ind.  118 ;  Baldwin  v.  Johnston,  51   Ind.  397;    The  City  of 

Kerlin,  46  Ind.  426.  Crawfordsville  v.  Barr,  65  Ind.  367. 

(v)  Baldwin  v.  Kerlin,  46  Ind.  426;  (x)  The   City  of  Crawfordsville  v. 

Ferguson   v.  Staver,   33   Pa.  St.  411  ;  Irwin,  46  Ind.  438. 
Torr  v.  Torr,  20  Ind.  118. 


268  PLEADINGS — THE    COMPLAINT.  [CHAP. 

'  that  is  certain  which  may  be  rendered  certain.'  But  to  have  made 
this  notice  operative  to  enforce  the  lien  established  by  it,  we  are  of  the 
opinion  that  there  ought  to  have  been  some  averment  in  the  complaint, 
particularly  describing  the  part  of  the  lot  upon  which  the  building  re- 
ferred to  in  the  notice  was  situated,  so  that  the  portion  of  the  lot  in- 
tended to  be  sold  to  satisfy  the  lien  might  have  been  described  by 
proper  metes  and  bounds,  or  by  some  appropriate  subdivision  of  the  lot 
in  the  order  of  sale  and  in  the  subsequent  proceedings.7 

This  seems  to  be  the  correct  rule,  and  is  consistent  with  the  decisions 
with  reference  to  descriptions  in  mortgages.2 

EXCEPTIONS  TO   COMMON-LAW  RULES  AS   TO   CERTAINTY. 

394.  Conditions  precedent. — The  code  expressly  provides  the 
manner  of  pleading  in  certain  cases,  and  the  degree  of  certainty  re- 
quired. Thus,  it  is  provided  that,  "in  pleading  the  performance  of  a 
condition  precedent  in  a  contract,  it  shall  be  sufficient  to  allege,  gener- 
ally, that  the  party  performed  all  the  conditions  on  his  part.  If  the 
allegation  be  denied,  the  facts  showing  the  performance  must  be  proved 
on  the  trial."  a 

The  rule  at  common  law  was  that,  "  in  pleading  the  performance  of 
a  condition,  the  party  must  not  plead,  generally,  that  he  performed  the 
coDdition,  but  must  show  specially  the  time,  place,  and  manner  of 
performance."11 

It  is  open  to  question  whether  the  section  should  be  limited  to  con- 
ditions named  in  the  contract,  or  whether  it  should  be  extended  to  con- 
ditions imposed  by  law. 

Mr.  Bliss,  in  his  work  on  Code  Pleading,  expresses  the  opinion  that  it 
should  be  confined  to  such  conditions  as  are  named  in  the  contract,  but 
admits  that  some  of  the  authorities  have  given  it  a  wider  application.0 

The  learned  author  says:  "But  fora  case  or  two  in  the  Supreme 
Court  of  New  York,  I  should  unhesitatingly  say,  both  upon  principle 
und  from  the  general  spirit  of  the  authorities,  that  this  provision  can 
only  refer  to  conditions  named  in  the  contract  sued  on.  First,  the 
language  of  the  statute  would  indicate  that  the  condition  was  '  in  the 
contract,' — i.  e.,  named  in  it — and  any  other  interpretation  would  ex- 
cuse the  pleader  from  stating  the  facts  that  constitute  the  cause  of  ac- 

(y)  Monger   v.  Green,  20   Ind.  38;  (a)  R.  S.  1881,  §  370. 

Guy  v.  Barnes,  29  Ind.  100;   Howell  r.  (b)  Stephen   PI.   334;    Bliss'    Code 

Zerbee,    26   Ind.   214;    O'Halloran    v.  PI.,  §  301 ;  The  Home  Ins.  Co.  v.  Duke, 

Leachey,  39  Ind.  150;  Caldwell  v.  As-  43  Ind.  418. 

bury,  .29  Ind.  451.  (c)  Bliss'  Code  PL,  \  302. 

(z)  Ante,  §390. 


XII.]  PLEADINGS — THE    COMPLAINT.  269 

tion.  In  suing  ypon  a  contract  with  express  conditions,  he  necessarily 
describes  them,  and  when  he  avers  a  performance,  though  in  general 
terms,  the  pleading  shows  precisely  what  he  has  done ;  thus  the  whole 
pleading  is  logical,  and  the  requirement  to  state  the  facts  is  complied 
with.  But  in  pleading  the  conditions  imposed  by  law — as  the  demand 
and  notice  in  an  action  against  the  indorser  of  a  bill  or  note — for  the 
plaintiff  to  say  that  he  has  duly  performed  all  the  conditions  on  his 
part  would  aver  no  fact.  To  make  the  statement  logical,  he  should 
state  what  conditions  the  law  imposes,  and  then  he  might  state  their 
performance  generally ;  but  that  would  be  pleading  law,  which  will 
not  do.  But  it  has  been  held  in  a  few  cases  that  an  averment  that  a 
payment  of  a  note  was  duly  demanded,  and  that  it  was  duly  protested, 
was  authorized  by  the  clause  under  consideration."  d 

In  Indiana,  the  section  has  been  confined,  by  the  cases  decided  under 
it,  to  conditions  expressly  named  in  the  contract,  and  it  is  believed  this 
is  the  better  rule.6 

But  it  must  be  admitted  that  while  the  cases  where  the  question  has 
been  presented  have  not  extended  the  provision  of  the  code  to  conditions 
not  named  in  the  contract,  they  have  not  expressly  decided  that  the  code 
must  be  confined  to  conditions  in  the  contract.  The  particular  cases  cited, 
as  for  instance,  in  the  case  of  suits  on  promissory  notes  against  the  in- 
dorser, hold  that  in  such  cases  the  facts  showing  demand  and  notice 
must  be  stated,  but  they  lay  down  no  general  rule  by  which  to  deter- 
mine what  conditions  are  within  the  section  under  consideration,  nor 
do  they  advert  to  the  statute  as  having  any  bearing  on  the  question. 
The  decisions  rest  upon  the  ground  that  the  allegation  that  notice  was 
duly  given,  is  a  conclusion  of  law.  The  section,  while  it  authorizes 
general  pleading,  should  not  be  so  construed  as  to  permit  the  allegation 
of  a  conclusion  of  law.  To  plead  generally  that  a  party  has  performed 
all  the  conditions  on  his  part  is  not  pleading  a  conclusion  of  law  but  of 
fact.  The  court  must,  however,  have  regarded  the  condition'that  de- 
mand shall  be  made  and  notice  given  as  not  being  within  this 
section  of  the  code,  though  it  is  not  so  expressed.  That  a  general 
allegation  of  performance  is  sufficient  when  the  condition  is  expressed 
in  the  contract  is  clearly  decided/ 

(d)  Bliss'  Code  PI.,  §  302.  citing  Gay  (e)  Iglehart's  PI.  and  Pr.,  22,  ?  8; 

v.  Paine,  5  How.  Pr.  107;    Adams  r.  Harbison  v.  The  Bank,  28  Ind.  133; 

Sherrill,  14   How.  Pr.  297 ;    Bank   of  Armstrong  v.  Cook,  30  Ind.  22. 

Geneva  v.  Guliek,  8  How.  Pr.  53;  Ad-  (f)  Purdue   v.   Noffsinger,    15   Ind. 

ler    v.    Bloomingdale,    1     Duer,    602;  386;   Masonic  and  Odd  Fellows'  Hall 

Butchers'    Bank  v.  Jackson,   15   Abb.  Co.  v.  Floyd,  20   Ind.  453;    Bragg  v. 

Pr.  '220  (s.  c.,  24  How.  Pr.  204).  Bamberger,  23  Ind.  198;  Plowman  v. 


270  PLEADINGS — THE    COMPLAINT.  [CHAP. 

If  the  party,  instead  of  availing  himself  of  the  right  giveu  him  by 
the  statute  to  plead  performance  generally,  attempts  to  state  the  facts 
constituting  performance,  he  must  state  such  facts  with  the  particularity 
and  strictness  required  by  the  rules  of  the  common  law,  and  the 
statute  can  not  aid  the  pleading.8 

395.  The  section  does  not  apply  to  allegations  of  excuse  for 
non-performance  of  conditions. — The  performance  of  a  condition 
precedent  need  not  be  alleged  in  all  cases.    It  may  be  waived  by  the  op- 
posite party.     Where  performance  is  waived,  the  complaint  must,  in 
order  to  excuse  the  allegation  of  performance,  allege  such  waiver.     It 
is  not  sufficient  to  allege  generally  a  waiver  or  other  excuse  for  a 
failure  to  perform  the  condition,  even  where  the  performance  could  be 
generally  averred.     The  facts   constituting  the   excuse  for  non-per- 
formance must  be  specially  alleged.11    The  statute  does  not  apply  to 
tender  or  offer  to  perform.     In  such  case  the  facts  must  be  alleged.' 

396.  Private  statutes. — The  statute  provides  that  "  in  pleading 
a  private  statute,  or  a  right  derived  therefrom,  it  shall  be  sufficient  to 
refer  to  such  statute  by  its  title  and  the  day  of  its  approval,  and  the 
court  shall  take  judicial  notice  thereof. "j 

Prior  to  the  code,  private  statutes  were  placed  upon  the  same  footing 
with  statutes  of  other  states  or  countries,  and  must  be  set  out  in  full. 
The  statute  changes  the  rule  by  authorizing  them  to  be  pleaded  by  a 
mere  reference  to  title  and  day  of  approval. 

When  so  pleaded,  the  court  must  take  judicial  notice  of  their 
contents. k 

But  statutes  of  other  states  must  be  set  out  in  full  in  the  pleading.1 

In  actions  for  penalties,  under  city  and  town  ordinances,  it  is  only 
necessary  to  give  the  number  of  the  section  and  the  date  of  its 
adoption."1 

397.  Actions  for  libel  and  slander. — "In  an  action  for  libel  or 
slander  it  shall  be  sufficient  to  state,  generally,  that  the  defamatory 

Shidler,  36  Ind.  484;  Mason  r.  Seitz,  ( j)  E.  S.  1881,  §  371. 

36  Ind.  516;  Cromwell  v.  Wilkinson,  (k)   Wilson  v.  Clark,  11  Ind.  385. 

18   Ind.  365;   The   Home   Ins.  Co.  v.  (1)  Tyler  v.  Kent,  52  Ind.  583;  Ir- 

Duke,  43  Ind.  418;  Bailey  v.  Troxell,  ving  v.  McLean,  4  Blkf.  52;  Elliott  v. 

43  Ind.  432;  Bruce  v.  Smith,  44  Ind.  1.  Kay,  2  Blkf.  31 ;  Titus  v.  Scantling,  3 

(g)  The  Home  Ins.  Co.  v.  Duke,  43  Blkf.  372;  Smith  v.  Muncie  National 

Ind.  418.  Bank.    29  Ind.  158;    Busk.   Prac.  15; 

(h)  Purdue  v.   Noffsinger,   15   Ind.  ante,  §  349. 

386.  (m)   R.  S.  ]881,  §3066;  Whitson  v. 

(i)  Newby  v.  Rogers,  40  Ind.  9.  The  City  of  Franklin,  "A  Ind.  392. 


XII.]  PLEADINGS — THE    COMPLAINT.  271 

matter  was  published  or  spoken  of  the  plaintiff;  and  if  the  allegation 
be  denied  the  plaintiff  must  prove,  on  the  trial,  the  facts  showing  that 
the  defamatory  matter  was  published  or  spoken  of  him."  n 

The  statute  does  not  dispense  with  the  necessity  of  alleging  such  ex- 
trinsic matter  as  may  be  necessary  to  show  the  words  to  be  actionable 
where  they  are  not  so  per  se.° 

But  it  is  not  required  that  the  facts,  showing  that  the  words  were 
spoken  of  the  plaintiff,  or  that  they  were  spoken  in  the  presence  of  any 
person,  should  be  stated.p 

398.  On  judgments. — "  In  pleading  a  judgment  or  decision  of  a 
court  or  officer  of  special  jurisdiction,  it  shall  be  sufficient  to  allege, 
generally,  that  the  judgment  or  decision  was  duly  given  or  made.  If 
the  allegation  be  denied  the  facts  conferring  jurisdiction  must  be 
proved  on  the  trial.  "q 

This  section,  like  the  others  dispensing  with  the  particularity  of 
averment  formerly  required,  does  not  change  the  rules  of  evidence. 
If  the  fact  of  jurisdiction  is  denied  by  the  defendant,  it  is  as  necessary, 
under  the  code  as  it  was  before,  that  the  plaintiff  shall  prove  that  the 
court  rendering  the  judgment  had  jurisdiction/ 

The  plaintiff  is  not  bound,  however,  to  allege  the  facts  show- 
ing the  jurisdiction  of  the  court,  but  may  plead,  generally,  that  the 
judgment  was  duly  given  or  decision  duly  made.9 

It  has  been  doubted,  in  some  of  the  states,  whether  the  statute  ap- 
plied to  a  judgment  from  another  state;*  but  there  are  numerous 
authorities  in  this  state  where  the  rule  laid  down  in  the  statute  has 
been  recognized  in  actions  on  foreign  judgments,  and  it  has  been  ex- 
pressly held  that  the  statute  applies  to  such  judgments." 

The  pleader  is  not  bound  to  adopt  the  manner  of  pleading  author- 
ized by  the  statute.  He  may  still  plead  the  facts  showing  jurisdiction 
in  the  court  rendering  judgment,  and  if  the  facts  stated  are  sufficient, 

(n)  R.  S.  1881,  I  372.  (s)  Willey  v.  Strickland,  8  Ind.  453; 

(o)  Shinloub  v.  Ammerman,  7  Ind.  Draggoo  v.  Graham,  9  Ind.  212;  Crake 

347;    De   Armond   v.   Armstrong,    37  v.  Crake,  18  Ind.  156;  Snyder  v.  Snv- 

Ind.  35;  Emerson  v.  Marvel,  55  Ind.  der,  25  Ind.  399;  Richardson  v.  Hick- 

265;  Ward  v.  Calyhan,  30  Ind.  395;  man,   22   Ind.  244;    The   Toledo  and 

Hart  v.  Coy,  40  Ind.  553.  "Wabash  and    Western    R.   R.   Co.   v. 

(p)  Hutts  v.  Hutts,  51  rlnd.  581;  McNulty,  34  Ind.  531 ;  Stiles  v.  Stew- 
Guard  v.  Risk,  11  Ind.  156.  art,  27  Am.  Dec.  142,  and  note. 

(q)  R.  S.  1881,  §  369.  (t)  Crake  v.  Crak,    18  Ind.  156. 

(r)  Draggoo  v.  Graham,  9  Ind.  212;  (u)  Crake  v.  Crake,  18  Ind.  156. 
Willey  v.  Strickland,  8  Ind.  453. 


272  PLEADINGS — THE    COMPLAINT.  [CHAP. 

without  the  general  allegation  provided  for  in  the  statute,  the  com- 
plaint will  be  good  in  that  respect. 

399.  In  actions  to  contest  wills. — The  statute  regulating  the 
contest  of  wills  provides  that  any  person  may  contest  the  validity  of 
any  will  by  filing,  in  the  proper  court,  "  his  allegation  in   writing, 
verified  by  his  affidavit,  setting  forth  the  unsounduess  of  mind  of  the 
testator ;  the  undue  execution  of  the  will ;  that  the  same  was  executed 
under  duress  or  was  obtained  by  fraud,  or  any  other  valid  objection  to 
its  validity  or  the  probate  thereof." v 

It  has  been  held,  under  this  statute,  that  there  are  but  two  causes 
named  therein  for  contesting  a  will:  (1.)  The  unsoundness  of  mind 
of  the  testator ;  (2.)  the  undue  execution  of  the  will ;  that  duress, 
fraud,  and  other  valid  objections  must  be  considered  as  within  the  sec- 
ond cause,  and  that  a  general  allegation  of  either  cause  is  sufficient 
without  stating  the  facts.w 

Both  the  correctness  and  wisdom  of  this  construction  of  the  statute 
may  well  be  doubted.  The  later  cases  seem  to  enforce  the  rule,  because 
it  has  been  so  long  established  and  acquiesced  in.  To  allow  the  gen- 
eral allegation  of  undue  execution  to  cover  every  cause  for  the  contest 
of  a  will,  except  unsouudness  of  mind,  including  fraud  and  undue  in- 
fluence, is  to  allow  a  degree  of  looseness  in  pleading  that  is  not  com- 
mendable, and  gives  the  defendant  no  notice  of  the  causes  to  be  relied 
upon  at  the  trial.  This  construction  of  the  statute  must  be  regarded 
as  firmly  settled  by  the  authorities,  whatever  may  be  thought  of  its 
correctness. 

400.  Negligence. — It  would  seem  to  be  reasonable  that  in  actions 
for  damages,  caused  by  negligence,  it  would  be  necessary  to  plead  the 
facts  constituting  the  negligence,  as  in  case  of  fraud,  but  the  authori- 
ties are  the  other  way.     It  is  held  to  be  sufficient  to  allege  the  negli- 
gence in  general  terms,  without  stating  the  facts  constituting  the  neg- 
ligence.1 

But  while  the  negligence  may  be  generally  averred,  the  particular 
act  charged  to  have  been  negligently  done  must  be  alleged. y 

(v)  R.  S.  1881,  \  2596.  oils,  etc.,  R.  R.  Co.r.  Hamilton,  44  Ind. 

(w)  Ken  worthy  v.  Williams,  5  li»d.  78;  The  Cincinnati,  etc.,  R.  R.  Co.  v. 

375;    Reed   v.   Watson,   27   Ind.  443;  Chester,  67  Ind.  297;  Cleveland,  etc., 

Willetw  Porter,  42  Ind.  250;  Bowman  Ry.  Co.  v.  Wynant,  100  Ind.  160. 
v.  Phillips,  47  Ind.  341;  Etter  v.  Arm-        (y)  The   Jetfersonville,    etc.,    R.   R. 

strong,  46  Ind.  197.  Co.  v.  Dunlap,  29  Ind.  426;   The  Cin- 

(x)  The  Indianapolis,  eto.,  11.  R.  Co.  cinnttti,  etc-.,  R.    R.  Co.  v.  Chester,  57 

v.  Keeley,  23  1  nd.  133;   The  Indian-ip-  Ind.  297,  oi>i>;   Hawley  v.  Williams,  90 

olis,  etc.,   R.  R.   Co.  v.  TaHe,   11    Ind.  Ind.  160.     F.>r  forms  of  complaint,  see 

458;   The  JeflFersonville,  etc.,  H.  K.  Co.  Vol.  3,  pp.  243-249. 
v.  Dunlap,  29  Ind.  426;  The  Indianap- 


XH.]  PLEADINGS — THE    COMPLAINT.  273 

In  the  case  of  the  Jefferson ville,  etc.,  R.  R.  Co.  v.  Dunlap,  the  court 
say  :  "  Certainly  every  rule  of  pleading  which  can  be  applied  to  the  sub- 
ject, while  dispensing  with  the  necessity  of  a  prolix  statement  of  the 
particulars  constituting  negligence,  do  require  that  the  act  which  was 
characterized  by  negligence  shall  be  stated ;"  and  this  language  is 
quoted  and  approved  in  the  case  of  the  Cincinnati,  etc.,  R.  R.  Co.  v. 
Chester. 

The  failure  to  allege  the  negligence  more  particularly  does  not  ren- 
der the  complaint  bad  on  demurrer. 

The  only  remedy  is  to  move  to  make  the  complaint  more  certain.2 

It  will  be  noticed,  upon  an  examination  of  the  authorities  cited,  that 
the  general  averment  is  held  to  be  sufficient  in  some  of  the  cases,  on 
the  ground  that  it  complies  with  the  form  of  complaint  provided  for  in 
that  class  of  cases  by  the  legislature.3 

But  such  pleading  is  held  to  be  sufficient  on  other  grounds.  It  is 
claimed  that  to  plead  fraud  generally  is  to  plead  a  conclusion  of  law, 
but  to  plead  negligence  in  the  same  way  is  to  plead  the  "  ultimate 
fact,"  and  to  require  any  greater  particularity  would  be  to  require  the 
evidence  to  be  pleaded. b 

It  is  difficult  to  see  why  it  is  not  as  much  a  conclusion  of  law  to 
plead  that  an  act  is  negligently  done  as  to  plead  that  it  is  fraudulently 
done.  There  is  no  good  reason  why  the  same  particularity  should  not 
be  required  in  the  one  case  as  in  the  other,  except  the  one  given  in  the 
decided  cases,  that  the  statute  provides  a  form  that  dispenses  with  it. 

In  this  class  of  cases,  besides  the  affirmative  facts  necessary  to  state 
a  cause  of  action,  it  must  be  alleged  that  the  plaintiff  was  without  fault.0 

It  is  not  necessary,  however,  that  the  complaint  should  contain  the 
direct  allegation  that  the  plaintiff  was  without  fault.  If  the  facts 
stated  show  that  his  negligence  did  not  contribute  to  the  injury,  it  is 
sufficient/  If  the  complaint  alleges  that  the  act  causing  the  injury 

(z)  The  Cincinnati,  etc.,  R.  R.  Co.  v.  Co.  v.  Bevin,  26  Ind.  443;  Riest  v.  The 

Chester,  57  Ind.  297.  City  of  Goshen,  42  Ind.  339;  Higgins 

(a)  2  R.  S.  1876,  p.  360,  Form  No.  14.  v.  The  Jefferson  ville,  etc.,  R.  R.  Co.,  52 

(b)  Bliss' Code  PI.  211.  Ind.  110;  The  Cincinnati,  etc.,   R.  R. 

(c)  The     President,     etc.,     of     the  Co.  v.  Katon,  53  Ind.  307;   Louisville, 
Town  of  Mount  Vernon  v.  Dusouchett,  etc.,  R.  R.  Co.  v.  Boland,  53  Ind.  398. 
2  Ind.  586;  The  Evansville,  etc.,  R.  R.         (d)  The  Cincinnati,  etc.,  R.  R.  Co. 
R.  Co.  v.  Hiatt,  17  Ind.  102;  The  In-  v.  Eaton,  53  Ind.  307;   Louisville,  etc., 
dianapolis,  etc.,  R.  R.  Co.  v.  Keeley,  23  R.  R.  Co.  v.  Boland,  53  Ind.  398:   Ili-- 
Ind.  133;  The  Evansville,  etc.,  R.  R.  gins  v.  The  Jeffersonville,  etc.,  R.   I.'. 
Co.  v.  Dexter,  24  Ind.  411 ;  The  .lefler-  Co  ,  52  Ind.  110;  Maxfield  r.  The  Cii> 
sonville,  etc.,  R.  R.  Co.  v.  Hendricks.  cinnati,  etc.,  R.  R.  Co.,  41  Ind.  269. 

2C  Ind.  228;   The  Toledo,  etc.,  R.  R. 
18 


274  PLEADINGS — THE    COMPLAINT.  [CHAP. 

was  willfully  and  purposely  done,  it  is  not  necessary  to  aver  that  the 
plaintiff  is  without  fault.6 

The  general  averment  that  the  plaintiff  is  without  negligence,  will 
be  controlled  by  the  facts  stated,  and  if  the  facts  show  that  his  fault 
contributed  to  the  injury  the  complaint  will  be  bad  on  demurrer,  not- 
withstanding such  averment,  unless  the  injury  was  purposely  and  will- 
fully inflicted/ 

FRAUD. 

401.  Facts  constituting  the  fraud  must  be  stated. — Gen- 
eral pleading  is  not  permitted  in  alleging  fraud.     The  allegation  that 
an   act  was  fraudulently  done  is  a  conclusion.     The   facts   must  be 
stated  from  which  the  court  can  determine  whether  a  fraud  has  been 
committed  or  not.g 

It  was  held  in  Huston  v.  Williams,  3  Blkf.  170,  that  the  general 
plea  of  "  fraud,  covin  and  false  representation,"  was  sufficient,  but  the 
later  cases  are  clearly  the  other  way.h 

CONSIDERATION. 

402.  When  a  consideration  must  be  alleged. — Certain  con- 
tracts import  a  consideration  on  their  face.     In  actions  upon  such  con- 
tracts no  consideration  need  be  alleged.     Contracts  under  seal,  promis- 
sory notes,  bills  of  exchange,  and  other  written  instruments,  belong  to 
this  class.' 

The  presumption  of  consideration  is  not  confined  to  promissory  notes 
negotiable  under  the  law  merchant,  but  applies  equally  to  all  written 
instruments  assignable  under  the  statute.-1 

And  notes  payable  on  a  contingency  are  governed  by  the  same 
rule.k 

(e)  The  Cincinnati,  etc.,  R.  R.  Co.  v.         (h)  Huston    v.   Williams,    25    Am. 
Eaton,  53  Ind.  307 ;  The  Terre  Haute,     Dec.  84. 

etc.,  R.  R.  Co.  v.  Graham,  46  Ind.  239;  (i)   R,  8.  1881,  §  450;  Durland  r.  Pit- 

The  Evansville,  etc.,  R.  R.  Co.  v.  Low-  cairn.  51  Ind.  426;  Rogers  v.  Maxwell, 

dermilk,  15  Ind.  120;  The  City  of  Fort  4  Ind.  243;  Leach  v.  Rhodes,  49  Ind. 

"Wayne  v.  De  Witt,  47  Ind.  391.  291;    Arnold   v.  Brown,    3  Blkf.  273; 

(f)  The  City  of  Fort  Wayne  v.  De  Nichols    v.    Woodruff,    8    Blkf.    493; 
Witt,  47  Ind.  391.  Shirkey  v.  Rutherford,    10   Ind.   414; 

(g)  Curry   v.  Keyser,  30  Ind.  214;  Tibbetts  W.Thatcher,  14  Ind.  86;  Ba- 
Darnell  v.  Rowland,  30  Ind.  342;  Kerr  ker  v.  The  Board  of  Comm'rsof  Wwsh- 
v.  The   State,   35  Ind.  288;    Keller  v.  ington  County,  53  Ind.  497. 
Johnson,  11  Ind.  337;  Webster  v.  Par-  ( j)  Durland  ?-.  Pitcairn,  51  Ind.  426; 
ker,  7  Ind.  185;  Swope  v.  Fair,  18  Ind.  Arnold  v.  Brown,  3  Blkf.  273. 

300;  Jenkins  v.  Long,  19  Ind.  28;  Harm        (k)  Nichols  v.  Woodruff,  8  Blkf.  493. 
v.  Greve,  34  Ind.  18. 


XII.]  PLEADINGS — THE    COMPLAINT.  275 

The  fact  that  the  note  is  made  payable  in  property  makes  no 
difference. l 

Contracts  that  are  assignable  are  named  in  the  statute  as  "promis- 
sory notes,  bills  of  exchange,  bonds,  or  other  instruments  in  writing, 
signed  by  any  person  who  promises  to  pay  money,  or  acknowledges 
money  to  be  due,  or  for  the  delivery  of  a  specific  article,  or  to  convey 
property,  or  to  perform  any  stipulation  therein  mentioned.""1  And  as 
the  statute  makes  all  written  instruments  named  therein  negotiable, 
they  import  a  consideration  and  none  need  be  alleged. 

In  actions  upon  contracts  not  negotiable  by  the  law  merchant  or 
under  the  statute,  a  consideration  must  be  alleged  in  the  complaint." 

403.  Facts  showing  consideration  must  be  pleaded. — It  is 
not  sufficient  to  allege  generally  that  the  promise  is  upon  a  sufficient 
consideration.     It  is  the   province  of  the  court  to  determine,  from 
the  facts  stated,  whether  there  is  such  a  consideration  as  will  uphold  the 
contract,  and  such  facts  must  be  set  out.     The  allegation  that  there  is 
a  consideration  for  the  promise  sued  on  is  a  mere  conclusion.0 

TITLE. 

404.  The  complaint  must  show  title. — It  was  one  of  the  rules 
of  pleading  at  common  law,  that,  "  when  in  pleading,  any  right  or 
authority  is  set  up  in  respect  of  property,  real  or  personal,  some  title 
in  that  property  must  be  alleged  in  the  party,  or  in  some  other  person 
from  whom  he  derives  his  authority.     So  if  a  party  be  charged  with 
any  liability  in  respect  of  property,  real  or  personal,  his  title  to  that 
property  must  be  alleged. "p 

It  is  not  in  every  case  concerning  property  that  the  plaintiff  is  re- 
quired to  shoAV  title ;  but  where  his  right  of  recovery  depends  upon 
his  interest  in  the  property,  and  the  defendant  is  not  in  condition  that 
he  is  estopped  to  deny  the  plaintiff's  title,  it  must  be  alleged  in  the 
complaint. 

405.  Title  to  real  property  ;  action  to  recover  real  estate. 
— The  manner  of  alleging  title  and  the  allegations  necessary  in  a  com- 
plaint to  recover  real  estate  are  regulated  by  statute.     "  The  plaintiff, 

(1)  Streeter  v.  Henley,  1  Ind.  401;  voord's   PI.  217;    Chitty's   PI.  292;    1 

Kogers  v.  Maxwell,  4  Ind.  243.  Saunders'  PI.  and  Ev.  187;  Nichols  v. 

(m)  R.  S.  1881,  §5501.  Nowling,   82    Iiul.   488;    Wheeler   v. 

(n)  Leach  v.  Khodes,  49   Ind.  291;  Hawkins,  101  Ind.  486. 

Brush  v.  Raney,  34  Ind.  416;  Kobinson  (o)  Brush  v.   Raney,   34   Ind.  41'!; 

v.  Barbour,   5    Blkf.  468;   Van   Sant-  Leach  v.  Rhodes,  49  Ind.  291. 

(p)  Stephens'  PI.  304. 


276  PLEADINGS — THE    COMPLAINT.  [CHAP. 

in  his  complaint,  shall  state  that  he  is  entitled  to  the  possession  of  the 
premises,  particularly  describing  them,  the  interest  he  claims  therein, 
and  that  the  defendant  unlawfully  keeps  him  out  of  possession."  q 

This  statute  would  seem  to  make  it  necessary  for  the  plaintiff  to 
show  specifically  his  interest  in  the  real  estate.  This  would  require 
the  complaint  to  disclose  whether  he  claims  a  fee  simple  or  a  life  es- 
tate, or  whether  his  claim  is  legal  or  equitable. 

It  has  been  held  by  the  supreme  court  that  where  the  plaintiff  claims 
a  fee  simple,  the  allegation  that  he  is  the  owner  of  the  fee  simple  is  a 
specific  allegation  of  title,  as  it  covers  the  whole  interest ;  but  where 
he  claims  an  interest  less  than  the  fee  simple,  he  must  state  particularly 
what  his  interest  is.  It  is  not  necessary  in  either  case  to  show  how  he 
derived  title/ 

There  are  cases,  as  we  shall  see  hereafter,  that  seem  to  recognize 
the  right  of  the  plaintiff  to  plead  his  title  generally,  without  showing 
whether  his  title  is  legal  or  equitable. 

406.  Can  not  allege  a  legal  and  recover  on  an  equitable  title. 
— The  advantage  tha.t  will  accrue  to  the  plaintiff  by  being  allowed  to 
plead  ownership  generally,   without  disclosing  whether  his  title   is 
legal  or  equitable,  is  sometimes  very  important.     The  rule  is  very  well 
established  that,  if  the  complaint  shows  a  legal  title,  the  plaintiff  can 
not  recover  at  the  trial  by  proof  of  an  equitable  title,  although  either, 
if  alleged  and  proved,  might  entitle  him  to  possession.     If  he  alleges 
an  equitable  title,  he  can  not  recover  by  proving  that  he  has  a  legal 
one.8 

407.  Possession  maybe  recovered  on  an  equitable  title. — 
At  common  law  an  action  of  ejectment  could  not  be  maintained  except 
upon  a  legal  title.    This  is  still  the  law  in  some  of  the  states.    Thus,  in 
Ohio  it  is  provided  that  "in  an  action  forthe  recovery  of  real  property 
it  shall  be  sufficient  if  the  plaintiff  state,  in  his  petition,  that  he  has  a 
legal  estate  therein,  etc."1    But  this  is  not  the  law  in  Indiana.     The 
plaintiff  is  required  to  state  his  interest  in  the  real  estate ;  and  if  the 
interest  is  equitable,  and  such  as  would  entitle  him  to  hold  possession, 
he  may  recover  under  the  code." 

408.  "When    ownership    is    alleged    generally,    can    the 

(q)  K.   S.    1881,   §   1054;    Vance   v.         (s)  Kowe  v.  Beckett,  30   Ind.    154; 

Schroyer,  78  Ind.  80.  Groves  v.  Marks,  32  Ind.  319. 

(r)  McMannus   -v.    Smith,   53    Ind.        (t)  2  K.  S.,  Ohio,  1880,  §  5781. 
211 ;  Knight  v.  McDonald,  37  Ind.  463.        (u)  Burt  v.  Bowles,  69  Ind.  1. 


XH.]  PLEADINGS — THE    COMPLAINT.  277 

plaintiff  recover  on  proof  of  an  equitable  title  ? — While  it  is 
well  settled,  in  this  state,  that  a  party  can  net  allege  a  legal  title  and 
recover  by  proof  of  an  equitable  one,  it  has  been  held  that  he  may 
allege,  generally,  that  he  is  the  owner  of  the  real  estate,  without  dis- 
closing whether  his  title  is  legal  or  equitable.7 

If  these  cases  are  correctly  decided  (which  may  well  be  doubted),  it 
must  necessarily  follow  that  the  plaintiff  has  the  right  to  recover,  on 
proof  that  he  is  the  oumer,  whether  his  ownership  is  legal  or  equitable. 
It  will  not  do,  in  such  case,  to  say  that  the  plaintiff  can  not  recover 
on  an  equitable  title  because  he  alleges  a  legal  title.  The  complaint 
does  not  disclose  whether  his  title  is  legal  or  equitable,  and  therefore 
proof  of  an  equitable  title  brings  the  case  within  the  allegations  of  the 
complaint.  In  the  case  of  Steeple  v.  Downing,  the  allegation  was  that 
the  plaintiffs  were  "the  owners,  and  entitled  to  the  immediate  posses- 
sion "  of  the  real  estate. 

The  objection  was  not  made  to  the  complaint,  that  it  did  not  dis- 
close the  interest  the  plaintiffs  claimed  in  the  real  estate.  It  was  con- 
tended that  the  complaint  was  bad  for  other  reasons.  The  court  held, 
however,  that  the  complaint  was  good  on  general  demurrer.  This  case 
can  not  be  made  to  harmonize  with  those  holding  that  the  plaintiff 
must  allege  that  he  claims  a  fee  simple  or  state  specifically  what  his 
interest  is.  This  general  manner  of  pleading  title  certainly  was  not  in- 
tended by  the  code.  If  the  plaintiff  alleges  what  his  interest  in  the 
real  estate  is,  as  the  code  plainly  requires,  he  must  necessarily  disclose 
whether  his  title  is  legal  or  equitable,  and  any  degree  of  certainty  less 
than  this  should  not  be  countenanced. w 

409.  Complaint  need  not  show  title  in  action,  by  landlord 
against  tenant,  for  possession. — In  an  action,  by  a  landlord, 
against  one  holding  the  premises  as  his  tenant,  the  complaint  need  not 
disclose  the  interest  of  the  plaintiff  in  the  real  estate.  This  is  on  the 
ground  that  the  tenant,  having  contracted  with  him  as  the  owner,  is 
estopped,  in  an  action  for  possession,  to  deny  the  landlord's  title,  and 
because  the  cause  of  action  is  on  the  lease  and  the  title  is  not  involved.1 

But  this  estoppel  only  applies  to  the  time  when  the  contract  of  leas- 
ing took  place.  If  the  landlord's  title  has  since  expired  the  tenant  is 
not  estopped  to  show  the  fact.7 

(v)  Steepler.  Downing,  60  Ind.  478;  Mattox  v.  Hebn,  15  Am.   Dec.  64.  (5 

Burt  17.  Bowles,  69  Ind.  1 ;  Schenck  r.  Littell,  185);    Taylor's  Landlord  and 

Kelley,  88  Ind.  444  ;  Vol.  3,  p.  148.  Tenant,  \  705. 

(w)  Antr-,  §405.  (y)  Kinney   v.    Doe,    8    Blkf.   350; 

(x)  Kinaey   v.   Doe,    8    Blkf.    850;  Murray  r.  Mounts,  19  Ind.  364;  Tay- 

Blakemoro  v.  Tabor,  22  Iml.  SG6;  Zim-  lor's  Landlord  and  Tenant,  §  706. 
merman   v.    Marchland,  23  Ind.  474; 


278  PLEADINGS — THE    COMPLAINT.  [CHAP. 

This  would  not  make  it  necessary,  however,  that  the  complaint 
should  disclose  his  title,  as  the  presumption  would  be  as  against  the 
tenant,  that  the  title  that  existed  at  the  time  of  the  leasing  continued. 

In  order  to  avoid  the  necessity  of  showing  title  in  the  plaintiff,  it 
must  appear  that  the  defendant  is  holding  as  tenant  at  the  time  the 
action  is  brought.  If  he  has  surrendered  possession  as  tenant,  and 
taken  possession  claiming  adversely,  the  plaintiff  must  recover  on  his 
own  title,  and  the  defendant  is  not  estopped  to  deny  it.z 

410.  In  actions  for  forfeiture  for  the  failure  of  condition 
subsequent. — Conditions  subsequent  are  not  favored  in  law,  and  are 
strictly  construed  against  a  grantor  and  his  heirs. a 

And  it  has  been  held  that,  as  in  this  class  of  cases,  only  the  grantor 
or  his  heirs  can  take  advantage  of  the  forfeiture,  the  complaint  must 
show  that  the  grantor  was  the  owner  in  fee  at  the  time  of  the  convey- 
ance, or  it  will  be  bad  on  demurrer.b 

411.  For  trespass   on   land. — As  a  rule,  where   an   action  is 
brought,  in  which  the  right  of  recovery  by  the  plaintiff  depends  upon 
his  having  title  in  the  real  estate,  such  title  must  be  alleged  in  the 
complaint.    This  is  not  the  rule,  however,  where  the  action  is  for  damages 
resulting  from  the  wrongful  act  of  the  defendant,  as  in  case  of  trespass 
on  land,  where  the  action  may  be  maintained  on  the  allegation  and 
proof  of  possession  without  showing  title.0 

And  in  an  action  for  a  nuisance  the  rule  is  the  same.d 

But  there  are  cases  where  the  plaintiff  may  recover  for  trespass  by 
proof  of  title  without  proving  actual  possession,  as  in  case  of  a  grantee, 
who,  at  the  time  the  trespass  is  committed,  has  not  yet  taken  posses- 
sion. Where  the  right  of  recovery,  as  in  this  class  of  cases,  depends 
upon  his  title  and  not  possession,  title  must  be  alleged.6 

There  can  be  no  recovery  when  there  is  an  adverse  possession  in 
another/ 

Where  the  plaintiff  has  such  possession  as  will  support  the  action, 
title  should  not  be  averred,  as  the  proof  must,  in  such  case,  correspond 

(z)  Zimmerman   v.   Marchland,    23  PI.,  §§  22,  227;  Wilson  v.  Bibb,  25  Am. 

Ind.  474.  Dec.  118  (1  Dana,  7). 

(a)  Hunt  v.    Beeson,   18   Ind.   380;  (d)  Barber  v.  Barber,  21  Ind.  468; 
Heaston  v.  The  Board,  etc.,   20  Ind.  Cromwell  v.  Lowe,  14  Ind.  234. 

398;  Clark  v.  Holton,  57  Ind.  564.  (e)  Wood  v.  Mansell,  3  Blkf.  125; 

(b)  Clark  v.  Holton,  57  Ind.  564.  Raub  v.  Heath,  8  Blkf.  575. 

(c)  Conner  v.  The  President,  etc.,  of  (f)  Wood  v.  Mansell,   3  Blkf.  125; 
New  Albany,  1  Blkf.  88;  Bliss'  Code  Broker  v.  Scoby,  56  Ind.  588. 


XTI.]  PLEADINGS — THE    COMPLAINT.  279 

with  the  allegation,  and  the  failure  to  prove  title  will  defeat  a  recover)', 
although  the  allegation  is  unnecessary.8 

Notwithstanding  the  necessity  of  possession  to  support  the  action, 
the  complaint  will  be  good  if  it  alleges  that  the  plaintiff  is  the  owner 
in  fee,  as  the  court  will  presume  that  the  plaintiff  is  in  possession  from 
the  allegation  of  ownership.11 

412.  To   recover   personal   property. — The  question  whether 
title  must  be  alleged  in  actions  relating  to  personal  property,  depends 
upon  the  nature  of  the  action.     As  a  rule,  where  the  action  is  to  re- 
cover possession,  it  is  not  necessary  to  show  title.     But  it  must  be 
alleged  that  the  plaintiff  is  entitled  to  the  immediate  possession.' 

When  the  plaintiff  bases  his  right  upon  the  ownership  of  the  prop- 
erty he  must  allege  title  in  the  complaint;  but  the  general  allegation, 
that  he  is  the  owner  and  entitled  to  possession,  is  sufficient. J 

There  are  authorities  holding  that  while  the  plaintiff  may  recover 
by  proving  the  right  to  immediate  possession,  the  complaint,  to  be 
good,  must  allege  ownership  in  the  plaintiff.k 

But,  whatever  the  rule  may  be  elsewhere,  the  statute  clearly  con- 
templates an  action,  not  only  by  the  owner,  but  any  person  "  claiming 
the  possession  thereof." l 

413.  In  actions  on  promissory  notes. — In  this  class  of  ac- 
tions, where  suit  is   brought  by  an  assignee,  the  complaint  should 
show,  not  in  terms  that  he  is  the  owner  of  the  note  sued  on,  but  that 
it  has  been  assigned  or  indorsed  to  him.     The  failure  to  make  such 
averment  will  not,  ordinarily,  render  the  complaint  bad  on  demurrer, 
as  the  presumption  is  that  the  party  in  possession  of  a  note  is  the 
owner  of  it.m 

But  there  is  a  class  of  cases  where  the  failure  to  allege  an  indorse- 
ment to  the  plaintiff  will  render  the  complaint  bad  on  demurrer.  The 
statute  requires  that  where  a  note  is  transferred,  by  delivery  or  without 

(g)  Barber  v.  Barber,  21  Ind.  468;  Ind.   414;     Simcoke    v.   Frederick,   1 

Broker  v.  Scoby,  56  Ind.  588.  Ind.  54. 

(h)  Conner  v.  New  Albany,  1  Blkf.  (k)  See  the  note  to  Orser  v.  Storms, 

88;  Broker  v.  Scoby,  56  Ind.  588.  18  Am.  Dec.  543,  where  the  right  to 

(i)  Highnote  v.  White,  67  Ind.  596;  maintain  the  action  of  replevin,  trover. 

Rose  v.  Cash,  58  Ind.  278;  Moorman  and  trespass  is  thoroughly  considered, 

v.   Quick,    20    Ind.    67 ;    Catterlin   v.  and  numerous  authorities  cited. 

Mitchell,  27  Ind.  298.  (1)  R.  S.  1881,  §  1216. 

(j)  Rowell  v.  Klein,   44   Ind.   290;  (m)  Lemon  v.  Temple,  7  Ind.  556; 

Lacy  v.  "Weaver,  49  Ind.  373  ;  Bailey  Bush  v.  Seaton,  4  Ind.  522;  Williams 

T.  Troxel,  43  Ind.  432;  Davis  v.  War-  r.  Dyer,  5  Blkf.   160;  Mendenhall  v. 

field,  38  Ind.  461 ;  Noble  v.  Epperly,  6  Banks,  16  Ind.  284. 


280  PLEADINGS— THE    COMPLAINT.  [CHAP. 

indorsement,  the  assignee  must  be  made  a  defendant,  to  answer  as  to 
the  assignment.11 

And  this  rule  applies  to  claims  against  executors  or  administrators.0 

If  suit  is  brought  against  the  maker,  without  joining  the  payee,  the 
complaint  must  show,  by  a  direct  averment,  the  manner  in  which  the 
transfer  to  the  assignee  was  made,  whether  by  delivery  or  in  writing, 
as  such  averment  determines  who  are  necessary  parties.1' 

The  word  indorsement  implies  a  "  writing  on  the  back ;  "  and  it  has 
been  held  that  where  the  complaint  alleges 'an  assignment  in  writing 
the  supreme  court  will  presume  that  the  assignment  is  by  a  separate 
instrument,  and  the  complaint  will  be  bad  if  the  assignor  is  not  made 
a  defendant. q 

In  the  case  of  Hill  v.  Shalter  it  was  held  that  the  allegation  that  the 
"  note  was  indorsed  and  assigned,  by  the  payee  to  the  plaintiff,"  was 
sufficient  to  show  an  indorsement  by  "  writing  on  the  back." 

The  ground  upon  which  the  authorities  are  based  is  that  the  assign- 
ment by  indorsement  is  necessary,  under  the  statute,  to  vest  the  legal 
title  to  the  note  in  the  indorsee ;  and  while  an  assignment  by  a  sepa- 
rate writing,  or  by  delivery,  amounts  to  such  an  equitable  assignment 
as  will  authorize  the  assignee  to  sue  as  the  real  party  in  interest,  the 
payee  being  the  legal  owner  of  the  note,  must  be  made  a  party  to  an- 
swer as  to  the  assignment.  This  is  for  the  protection  of  the  maker, 
and  is  absolutely  necessary  to  the  sufficiency  of  the  complaint.  If  the 
facts  stated  in  the  complaint  show  that  the  indorsement  is  in  writing 
to  the  plaintiff,  this  is  sufficient,  or  it  may  be  alleged  generally.  The 
averment  that  the  note  has  been  indorsed  to  the  plaintiff  is  a  sufficient 
allegation  that  he  is  the  party  entitled  to  sue  upon  it,  and  the  aver- 
ment of  an  assignment  or  delivery  is  also  sufficient  where  the  assignor 
is  made  a  defendant/ 

But  where  the  plaintiff  sets  out  the  facts  specifically,  which  show 
that  he  has  no  title,  the  complaint  will  be  held  bad,  although  it  con- 
tains a  general  averment  of  ownership.8 

(n)  E.  S.  1881,  §  276;  Vol.3,  p.  56.  (q)  The  Marion,  etc.,  Gravel  Road 

(o)  R.  S.  1881,  §  2324.  Co.  v.  Kessinger.  66  Ind.  549;  Keller 

(p)  Barcus  v.  Evans,  14  Ind.  381;  v.  Williams,  49  Ind.  504;  Hill  v.  Shal- 

Treadway  v.  Cobb,  18  Ind.  36;  Clough  ter,  73  Ind.  459. 

v.   Thomas,   53   Ind.  2t;     Holman    v.  (r)  Bliss'  Code  PI.,  ??  232,  23H. 

Langtree,  40  Ind.  349 ;  Kline  v.  Spahr,  (s)   Richardson   v.   Snyder,   72  Ind. 

56  Ind.  296;  Hill  v.  Shalter,  73  Ind.  425. 

459. 


XII.]  PLEADINGS — THE    COMPLAINT.  281 

IN  ACTIONS  OTHER  THAN  FOR  MONEY  OR  SPECIFIC  PROP- 
ERTY, THE  COMPLAINT  MUST  SHOW  THAT  THERE  IS 
NO  OTHER  ADEQUATE  REMEDY. 

414.  Rule   not  changed  by  the    code. — While  the  code  has 
changed  the  forms  of  actions  as  they  existed  at  common  law  and  in 
equity,  the  remedy  remains  the  same. 

It  is  necessary,  therefore,  as  it  was  under  the  old  system,  where  the 
plaintiff  asks  for  equitable  relief,  that  he  should  show  in  his  complaint 
that  he  has  no  adequate  remedy  in  what  would  have  been  a  common- 
law  action.* 

Usually  the  statement  of  the  facts  constituting  the  plaintiff's  cause 
of  action,  in  this  class  of  cases,  will  show  that  he  has  no  remedy  at 
law.  Where  this  is  the  case,  no  direct  averment  is  necessary.  But 
the  complaint  must  either,  by  a  direct  allegation  or  by  a  statement  of 
the  facts,  show  that  there  is  no  adequate  remedy  at  law,  or  the  com- 
plaint will  be  insufficient. 

IN  AN  ACTION  FOUNDED  ON  A  WRITTEN  INSTRUMENT, 
THE  ORIGINAL  OR  A  COPY  MUST  BE  FILED  WITH  AND 
MADE  A  PART  OF  THE  COMPLAINT. 

415.  The  statute. — The  statute  provides:  "When  any  pleading 
is  founded  on  a  written  instrument  or  on  account,  the  original,  or  a 
copy  thereof,  must  be  filed  with  the  pleading.     A  set-off  or  a  counter- 
claim is  within  the  meaning  of  this  section."  u 

This  section  of  the  code  changes  the  common-law  rule  that  allowed 
the  pleader  to  set  out  the  instrument  according  to  its  legal  effect. 

The  object  of  the  section  is  to  bring  the  instrument  before  the  court, 
that  the  court  may  determine  what  is  its  legal  effect.  In  some  of  the 
states  having  similar  provisions,  it  is  held  that  the  instrument  is  no 
part  of  the  complaint.7  This  is  upon  the  ground  that  the  filing  of  the 
copy  of  the  instrument  takes  the  place  of  profert  at  common  law.w 

(t)  Baragree  v.  Cronkhite,   33  Ind.         (u)  K.  S.  1881,  \  362. 
192;  Laughlin  v.  The  President,  etc.,         (v)  Bates' Ohio  PI.  and  Par.  99;  Lari- 

of  Lamasco   City,   6   Ind.   223;    Me-  more  v.  Wells,  29  Ohio  St.  13 ;  Nathan 

Quarrie  v.   Hildebrand,  23  Ind.  122;  v.  Lewis,   1   Handy,  239;  Sargeant  v. 

Cooper  v.  Hamilton,  8  Blkf.  377 ;  The  Moore,  1   Disney,  99;   West  v.   Dod- 

Indianapolis  Kolling  Mill  Co.  v.  The  worth,  1  Disney,  161 ;  Cairo  and  Ful- 

City  of  Indianapolis,  29  Ind.  245  ;  The  ton  Pv.  R.  7;.  Parks,  32  Ark.  131 ;  Bowl- 

Centerville.  etc.,  Turnpike  Co.  v.  Bar-  ing  v.  McFarland,  38  Mo.  465;  City  of 

nett,  2  Ind.  536;  Bolster  v.  Catterlin,  Los  Angeles  v.  Signoret.  50  Cal.  298. 
10Ind.ll7;  Ploughe v.  Boyer,  38  Ind.         (w)   K.   S.   Ohio,  \  5085;    Memphis 

113;  Schwab  v.  The  City  of  Madison,  Med.  Coll.  v.  Newton,  2  Handy,  163; 

49  Ind.  329;  Mather  v.  Simon  ton,  73  Egan  v.  Tewksbury,  32  Ark.  43. 
Ind.  595. 


282  PLEADINGS — THE    COMPLAINT.  [CHAP. 

But  the  authorities  are  otherwise  in. Indiana.  The  section  is  not 
construed  as  making  profert  of  the  instrument  necessary  by  filing  a 
copy  with  the  pleading.  The  instrument  is  held  to  be  a  part  of  the 
complaint,  and  the  failure  to  file  the  original  or  a  copy,  where  it  is  the 
foundation  of  the  action,  is  fatal  to  the  complaint  on  demurrer.1  And 
this  rule  has  been  carried  to  the  extent  that  the  filing  of  a  copy  of  the 
instrument  with 'one  paragraph  of  a  pleading  can  not  aid  another  par- 
agraph, where  the  instrument  is  a  necessary  part  of  both.y 

But  one  copy  is  sufficient  for  all  the  paragraphs  of  a  complaint,  if 
referred  to  and  made  part  of  each.2 

The  written  instrument  may  be  copied  into  the  complaint,  and  this 
will  be  sufficient.* 

Where  the  instrument  is  lost,  or  in  the  possession  of  the  opposite 
party,  or  can  not  for  any  other  sufficient  reason  be  set  out,  the  facts 
constituting  the  excuse  must  be  stated.6 

416.  Exhibits  control  averments  in  pleading. — Not  only  is 
the  written  instrument  regarded  as  a  part  of  the  pleading  in  this  state, 
but  its  terms  can  not  be  varied  or  changed  by  its  averments.     Where 
there  is  a  variance  between  the  pleading  and  the  exhibit  filed,  the  ex- 
hibit must  control.c 

417.  What  is  a  written  instrument  within  the  meaning 
of  the  section. — The  section  is  plain  enough  in  its  terms,  but  the 
difficulty  has  been  in  determining  what  written   instruments  are  in- 
cluded within  its  provisions.     The  profession  and  the  courts  were  in- 
clined, at  the  outset,  to  give  it  the  broadest  construction,  and  every 

(x)  Mercer  v.  Herbert,  41  Ind.  459;  (y)  The  Pennsylvania   Co.  v.  Hol- 

Seawright  v.   Coffman,   24   Ind.   414;  derman,  69  Ind.  18. 

Price  v.  The  Grand  Rapids,  etc.,  R.  R.  (z)  Post,  §  422;  Peck  v.  Hensley.  21 

Co.,  13  Ind.  58;    Herron  v.  Clifford's  Ind.  344;  Maxwell  v.  Brooks.  54  Ind. 

Adm'r,  18  Ind.  411 ;  West  v.  The  Bull-  98. 

skin  Prairie  Ditching  Co.,  19  Ind.  458;  (a)  Adams  v.  Dale,  29  Ind.  273. 
Westfall  v.  Stork,  24  Ind.  377 ;  Spauld-  (b)  Peabody  v.  Peabody,  59  Ind.  556. 
ing  v.  Baldwin,  31  Ind.  376  ;  Plowman  (c)  Mercer  v.  Herbert,  41  Ind.  459; 
v.  Shidler,  36  Ind.  484;  Hamrick  v.  Stafford  v.  Davidson,  47  Ind.  319; 
Craven,  39  Ind.  241;  Galbrentli  r.  Me-  Crandall  v.  The  First  National  Bank 
Neiley,  40  Ind.  231 ;  King  c.  The  En-  of  Auburn,  61  Ind.  349;  Carper  v. 
terprise  Insurance  Co.,  45  Ind.  43;  Garr,  Scott  &  Co.,  70  Ind.  212  ;  Hurl- 
Cook  v.  Hopkins,  66  Ind.  209;  The  but  v.  The  State,  71  Ind.  154;  The  City 
Pennsylvania  Co.  v.  Holderman,  69  of  Elkhart  v.  Simonton,  71  Ind.  7; 
Ind.  18;  Brown  v.  The  State,  44  Ind.  Bayless  v.  Glenn,  72  Ind.  5;  Cress  v. 
222.  Hook,  73  Ind.  177  ;  The  Watson  Coal 

and  Mining  Co.  v.  Casteel,  73  Ind. 296. 


XII.]  PLEADINGS— THE    COMPLAINT.  283 

class  of  writing  that  was  the  foundation  of  the  action  was  required  to 
be  filed  with  the  pleading.  The  later  decisions  show  an  inclination  to 
limit  the  section  to  such  written  instruments  as  are  signed  by  the  party 
to  be  charged.  The  decided  cases  do  not  establish  any  rule  by  which 
to  determine  what  shall  be  regarded  as  within  the  section. 

There  are  certain  writings  that  have  been  expressly  held  not  to  be 
written  instruments  within  the  meaning  of  the  section.  Judgments 
are  not  written  instruments. d  It  was  held  otherwise  in  some  of  the 
earlier  cases ;  e  but  these  cases  are  expressly  overruled  by  the  case  of 
Lytle  v.  Lytle.  In  the  latter  case  the  court  say  :  "After  mature  con- 
sideration, we  have  come  to  the  conclusion  that  a  proper  construction 
of  that  section  of  the  code  and  a  regard  for  convenience  and  economy 
in  practice  require  us  to  hold  that  a  judgment  is  not  a  written  instru- 
ment within  the  meaning  of  that  section.  Deeds,  mortgages,  bonds, 
written  contracts,  promissory  notes,  bills  of  exchange,  etc.,  are  written 
instruments.  Judgments  are  in  writing,  but  are  not  usually  called 
written  instruments.  TJie  legislature,  in  framing  and  enacting  the  section, 
evidently  had  in  view  only  instruments  of  which  '  tiie  original  or  a  copy ' 
might  be  filed,  as  the  party  might  elect.  The  original  of  a  judgment  can 
not  be  filed." 

This  case  furnishes  a  test  by  which  to  determine  whether  a  writing 
is  a*"  written  instrument"  or  not.  If  it  is  one  of  which  the  original 
might  be  filed,  it  is  included  within  the  statute,  and  must  be  filed.  If 
the  original  can  not  be  filed,  the  copy  is  not  necessary.  If  this  rule 
had  been  adhered  to,  the  pleader  could  easily  determine  whether  the 
writing  upon  which  he  founds  his  action  is  a  written  instrument  within 
the  statute.  But  the  decided  cases  can  not  be  harmonized  with  this 
rule.  In  the  case  of  city  ordinances  it  was  uniformly  held  that  a  copy 
must  be  filed  with  the  complaint,  until  a  special  statute  was  enacted 
making  it  sufficient  to  refer  to  the  section  alleged  to  be  violated,  and 
give  the  date  of  its  adoption/ 

The  same  rule  is  applied  in  proceedings  to  review  judgments.  The 
entire  record  must  be  made  part  of  the  complaint,  although  the  statute 

(d)  Brooks  v.  Harris,  41  Ind.  390;  Morris  v.  Amos,  15  Ind.  365  ;  The  State 
Lytle  v.  Lytle,  37  Ind.  281  ;  Campbell  v.  Marshall,  20  Ind.  287 ;  Sugar  Creek 
v.  Cross,  39  Ind.  155;  Wyant  r.Wyant,  Township   v.  Johnson,    20   Ind.  280; 
38  Ind.  48;    Hinkle  v.  Reid,  43  Ind.  Bates  v.  Simpson,  19  Ind.  388. 

390;  Morrison  v.  Fishel,  64  Ind.  177;         (f)  Green  v.  The  City  of  Indianap- 

"Wilson  17.  Vance,   55   Ind.   584  ;  Me-  olis,  25  Ind.  490;  Green  v.  The  City 

Sweney  v.  Carney,  72  Ind.  430;  Jones  of  Indianapolis.  22  Ind.  192;  Whitson 

r.  Levy,  72  Ind.  586 ;  Berry  v.  Reed,  v.  The  City  of  Franklin,  34  Ind.  395 ; 

73  Ind.  235.  Schwab  v.  The  City  of  Madison,  49 

(e)  Resor  v.   Raney,   14   Ind.   441 ;  Ind.  329. 


284  PLEADINGS — THE    COMPLAINT.  [CHAP. 

authorizing  the  proceeding  does  not  require  it.g  It  has  been  held, 
also,  that  assessments  in  favor  of  a  turnpike  company,  or  other  cor- 
poration organized  under  the  statute,  are  written  instruments  within 
the  meaning  of  the  section.11  In  a  later  case  the  court  seems  inclined 
to  doubt  whether  an  assessment  is  such  a  written  instrument  as  must 
be  filed,1  but  the  court  expressly  waives  a  decision  of  the  point.  A 
tax  duplicate  has  been  held  not  to  be  within  the  statute.J 

418.  When  the  'written  instrument  is  the  "foundation  of 
the  action." — The  statute  only  requires  the  original,  or  a  copy  of  the 
written  instrument,  to  be  filed,  when  it  is  the  foundation  of  the  action 
or  defense.  It  maybe  necessary,  where  the  instrument  is  to  be  used  as 
evidence,  that  it  should  be  accurately  described,  but  it  could  not 
be  properly  set  out  in  the  pleading. 

The  question,  whether  a  written  instrument  is  the  foundation  of 
the  action  or  not,  is  not  always  easily  determined.  If  it  is  the  contract 
which  contains  the  promise  sued  on,  there  can  be  no  question ;  but 
there  are  other  cases  that  can  not  be  determined  by  this  easy  test.  The 
decided  cases  can  not  furnish  a  rule  by  which  to  determine.  All  that 
can  be  done  is  to  look  to  the  cases  holding  that  a  particular  instrument 
is  or  is  not  to  be  regarded  as  the  foundation  of  the  action  as  illustrating 
the  section.  No  authority  need  be  cited  to  show  that  in  actions  on 
promissory  notes,  bills  of  exchange,  written  contracts  signed  by  the 
party  to  be  charged,  or  in  the  foreclosure  of  mortgages,  the  writing  is 
the  foundation  of  the  action.  It  has  been  held,  however,  in  an  action 
by  the  assignee  against  the  maker  of  a  promissory  note,  that  the  in- 
dorsement need  not  be  set  out,  as  it  is  not  the  foundation  of  the  action. k 

It  was  held  to  be  necessary  in  some  of  the  earlier  cases,1  but  these 
cases  were  expressly  overruled  in  Treadway  v.  Cobb. 

Where  the  action  is  against  the  indorser  the  indorsement  is  his  con- 
tract, and,  as  against  him,  is  the  foundation  of  the  action,  and  must 
be  set  out.m 

In  an  action  for  possession  of  real  estate,  and  to  quiet  the  title,  the 
deed  to  the  plaintiff  is  not  the  foundation  of  the  action." 

(g)  Stevens  v.  Parish,  29  Ind.  260;  Co.,  73  Ind.  179;    Treadway  v.  Cobb, 

Davis  v.  Perry,  41  Ind.  305.  18   Ind.  36;    Kline  v.  Spahr,  56   Ind. 

(h)  Dobson     v.    The     Duck     Pond  296;    The    Indianapolis,   etc.,    Co.   v. 

Ditching    Association,   42    Ind.    312;  First   Nat.  Bank  of  Indianapolis,  33 

The  Jordan    Ditching   Association   v.  Ind.  302. 

Wagoner,  33  Ind.  50.  (1)  Connard  v.  Christie,  16  Ind.  427. 

(i)  Gossett  v.  Tolen,  61  Ind.  388.  (rn)  Treadway  v.  Cobb,  18  Ind.  36; 

(j")   iiazzard    v.    Heacock,    39    Ind.  Moreau  v.  Branson,  37  Ind.  195. 

172;  Ewing  v.  Robeson,  15  Ind.  26.  (n)   Lash    v.    Perry,    19    Ind.   322; 

(k)  Tilman   v.   Barter,    38   Ind.   1 ;  Burkholder  v.  Casad,  47  Ind.  418. 
Morgan  v.  The  Smith  American  Organ 


XII.]  PLEADINGS — THE    COMPLAINT.  285 

In  an  action  to  set  aside  a  conveyance  as  fraudulent,  the  fraud  is 
the  foundation  of  the  action,  and  the  deed  need  not  be  set  out.0 

In  an  action  on  a  recognizance  a  copy  must  be  filed. p 

Where  it  is  claimed  that  an  executor  is  entitled  to  the  care  and  cus- 
tody of  the  testator's  children,  by  the  terms  of  the  will,  the  will  is  the 
foundation  of  the  claim,  and  must  be  filed  with  the  pleading.*1 

So  in  an  action  on  an  appeal  bond,  the  bond  is  the  foundation  of 
the  action/ 

In  an  action  to  restrain  the  collection  of,  and  vacate  a  judgment, 
the  execution  issued  on  the  judgment  is  not  the  foundation  of  the  ac- 
tion.8 

In  an  action  on  the  covenants  in  a  deed,  the  deed  is  the  foundation 
of  the  action.1 

In  an  action  to  recover  money  paid  on  a  judgment  at  the  request  of 
the  judgment  debtor,  the  judgment  is  not  the  foundation  of  the  action." 

Nor  is  it  where  the  surety  has  been  compelled  to  pay  the  judgment 
and  brings  his  action  to  recover  the  amount  paid  from  the  principal/ 

419.  Must  be  referred  to  and  made  part  of  the  pleading. 
— It  is  not  sufficient  that  the  instrument  is  filed  with  the  pleading. 
There  must  be  such  a  reference  to  it  in  the  pleading  with  which  it  is 
filed  as  will  properly  identify  it  and  make  it  a  part  thereof.w 

But  it  has  been  held  to  be  sufficient  in  an  action  on  a  note  that  the 
note  be  filed  and  referred  to  as  "a  copy  of  which  is  filed  herewith," 
without  a  direct  averment  that  it  is  "  made  a  part"  of  the  complaint.1 

It  is  not  sufficient  to  allege  in  the  pleading  that  the  instrument  is 
filed.  It  must  not  only  be  referred  to,  but  must  be  actually  filed  Avith 
the  pleading/ 

420.  Written  instruments  not  the  foundation  of  the  ac- 
tion can  not  aid  the  pleading. — It  is  only  where  the  written  in- 
strument is  the  foundation  of  the  action  that  it  can  be  made  a  part  of 

(o)  Bray  v.  Hussey,   24   Ind.   228;  (u)  Holcraft  t>.  Halbert,  16  Ind.  256. 

Jager  v.  Jager.  49  Ind.  428.  (v)  Barker  v.  Glide  well,  23  Ind  21!>. 

(p)  Votaw   v.   The   State,   12   Ind.  (w)  The  Peoria.  etc.,  Insurance  C«>. 

497;    Riser  v.  The  State,  13  Ind.  80.  v.  \Valser,  22  Ind.  73;   Hiatt  v.  Goblt. 

(q)  Hillisu.  Wilson,  13  Ind.  146.  18  Ind.  494;  Stafford  v.  Davidson.  47 

(r)  Butler  v.  Wadloy.  15  Ind.  502.  Ind.  319;  Rogers  v.  The  State,  78  In.!. 

(s)  Fuller  v.  The  Indianapolis,  etc.,  329. 

R.  R.  Co.,  18  Ind.    91  :    Trueblood  v.  (x)  Carper  v.  Kitt,  71  Ind.  24;  ileeJ 

Hollin-isworth,  48  Ind.  y,l .  v.  Broadbelt,  C8  Ind.  91. 

(tl  Wnodt'ord  r.    Leavenworth,    14  (y)  Busk.    Pr.ie.    183;    Conwell    v. 

Ind.  311;    Laughery   r.    McLean,    14  Clifford,  45  Ind.  392. 
Ind.  100;  post,  \  619. 


286  PLEADINGS — THE    COMPLAINT.  [CHAP. 

the  pleading.  When  it  is  not  the  foundation  of  the  action,  and  is 
filed  with  the  pleading,  it  can  not  aid  it  in  any  way.  The  pleading 
must  be  good,  without  reference  to  the  written  instrument  filed,  or  it 
will  be  subject  to  demurrer/  It  is  important,  therefore,  that  the 
pleader  should  determine,  before  preparing  his  pleading,  whether  the 
instrument  is  the  foundation  of  the  action  or  mere  evidence  of  his  right 
to  recover.  If  there  is  doubt,  the  instrument  should  be  filed ;  but  for 
safety  the  averments  should  be  made  so  full  that  the  pleading  will  be 
good  within  itself,  without  reference  to  the  writing,  if  it  should  be  held 
not  to  be  the  foundation  of  the  action.  In  this  way  the  pleading  will 
withstand  a  demurrer  in  either  contingency. 

421.  Contract  not   alleged   to  be  in  writing  conclusively 
presumed  to  be  verbal. — It  is  important  that  the  complaint  should 
allege  the  fact  when  the  contract  sued  on  is  in  writing.     If  it  is  not 
alleged  it  will  be  conclusively  presumed  that  it  is  verbal.3 

It  is  held  in  some  of  the  states  that  where  the  contract  sued  on  is 
required  by  the  statute  of  frauds  to  be  in  writing,  and  the  complaint 
fails  to  show  whether  it  is  in  writing  or  not,  the  court  will  presume 
that  a  valid  contract  is  intended,  and  that  it  is  in  writing.1" 

But  the  rule  is  very  clearly  settled  the  other  way  in  Indiana.  The 
conflict  in  the  authorities  grows  out  of  the  different  constructions  placed 
on  the  statute  requiring  the  writing  to  be  filed  with  the  pleading.  In 
this  state  it  is  held  that  as  the  statute  requires  the  contract  to  be  filed, 
if  in  writing,  it  will  be  presumed  that  it  is  verbal,  or  it  would  be  set 
out  as  the  statute  requires.0 

It  was  held  otherwise  in  some  of  the  earlier  cases, d  but  they  are 
expressly  overruled. 

422.  The  same  copy  may  be  referred  to  and  made  part  of 

(z)  Knight   v.   The    Flatrock,   etc.,  art,  54  Ind.  178;  Foreman  v.  Beckwith, 

Turnpike  Co.,  45  Ind.  135;  The  Ex-  73  Ind.  515. 

celsior  Draining  Co.  v.  Brown,  38  Ind.  (b)  1  Bates'  Ohio  PI.  and  Par.  109, 
384;  Jager  v.  Jager,  49  Ind.  428;  citing  Marston  v.  Sweet,  66  N.  Y.  206; 
Watkins  v.  Brunt,  53  Ind.  208 ;  Wil-  Taylor  v.  Patterson,  5  Dreg.  121 ;  Me- 
son v.  Vance,  55  Ind.  584;  Cress  v.  Donald  v.  Mission  View  Homestead 
Hook,  73  Ind.  177;  Briscoe  v.  Johnson,  Ass'n,  51  Cal.  210;  First  Nat,  Bank  v. 
73  Ind.  573.  Kinner,  1  Utah  Ty.  100;  Walsh  v.  Kat- 

(a)  Suman  v.  Springate,  67  Ind.  115  ;  tenburg,  8  Minn.  127;  Ecker  r.  McAl- 

Goodrich  v.  Johnson,  66  Ind.  258 ;  Har-  ister,  45  Md.  290 ;  Mullaly  v.  Holden, 

per  v.  Miller,  27  Ind.  277;  Crosby  v.  123  Mass.  583. 

Jeroloman,  37  Ind.  264;  Berkshire  v.        (c)  See     authorities     cited,     supra; 

Younge,  45  Ind.  461 ;  Krutz  v.  Stew-  Krohn  v.  Bantz,  08  Ind.  277. 

(d)   Harper  v.  Miller,  27  Ind.  277. 


XII.]  PLEADINGS — THE    COMPLAINT.  287 

every  pleading  in  the  case. — It  may  sometimes  occur  that  the 
same  written  instrument  is  the  foundation  of  the  cause  of  action,  and 
also  of  the  defense  and  of  a  cause  of  action  existing  in  the  defendant's 
favor,  that  may  be  set  up  by  way  of  counterclaim.  Where  this  is 
the  case,  and  the  written  instrument  or  a  copy  is  filed  with  the  com- 
plaint, it  may  be  made  a  part  of  any  paragraph  of  any  pleading  filed 
in  the  cause  by  proper  reference  and  making  it  a  part  of  such  para- 
graph.6 

The  application  of  the  rule  to  cross-complaints  is  denied  in  some  of 
the  decided  cases  ;f  but  these  cases  may  be  regarded  as  overruled  on 
this  point  by  the  later  case  of  Sidener  v.  Davis.  This  last  case  seems 
to  be  open  to  criticism.  It  is  held  that  it  is  sufficient  for  the  cross- 
complaint  to  refer  to  the  written  instrument  as  being  the  contract,  "  of 
which  a  copy  is  filed  with  the  complaint."  This  language  is  simply  a 
reference  to  what  is  filed  with  the  complaint,  without  in  any  way  in- 
corporating it  in  or  making  it  a  part  of  the  cross-complaint.  This,  we 
have  seen,  is  not  sufficient.8  It  should  not  only  be  referred  to,  but  it 
should  be  made  a  part  of  the  subsequent  pleading  by  the  proper  aver- 
ment. 

ACTIONS    AGAINST    HEIRS    FOR    DEBTS    OF    ANCESTOR. 

423.  What  complaint  must  show. — The  creditor  is  not  always 
bound  to  file  his  claim  against  the  estate,  but  may  sue  the  heirs,  de- 
visees, or  distributees  of  the  debtor. 

The  complaint  must  show  that  the  estate  of  the  deceased  debtor  has 
been  finally  settled,  the  date  of  such  settlement,  that  the  defendants 
have  received  property  from  the  deceased,  and  that  the  plaintiff,  for  the 
six  months  prior  to  the  final  settlement,  was  either  insane,  an  infant, 
or  out  of  the  state.  The  heirs,  devisees,  and  distributees  may  be  sued 
jointly.h 

DEMAND    FOR    RELIEF. 

424.  The  complaint  should  contain  a  prayer  for  relief. — 

It  is  not  necessary  that  the  plaintiff  should  state  specifically  the  relief 
demanded.  A  general  demand  will  entitle  him  to  such  relief  as  the 
facts  stated  authorize  the  court  to  grant.1 

ie)  Maxwell  v.  Brooks,  54  Ind.  98;  (h)  Ante,  §  303;  K.  S.  1881,  §§  2442, 

Patterson  v.Vaughn,  40  Ind.  253;  Sid-  2449;  Rinard   v.  West,   48  Ind.  159; 

ener  v.  Davis,  69  Ind.  336.  Stephen  v.  Tucker,  73  Ind.  73;  Faulk- 

(f )  Campbell  v.  Routt,  42  Ind.  410 ;  ner  v.  Lonbee,  MS.  Case  8,408,  Nov.  4, 
Bmnbaiu  v.  Johnson,  62  Ind.  259.  1881 ;  Carr  v.  Huette,  73  Ind.  378. 

(g)  Ante,  §419.  (i)  Eaton    v.   Burns,   31    Ind.   390; 

Shattuck  v.  Cox,  07  Ind.  242. 


288  PLEADINGS — THE    COMPLAEST»  [CHAP. 

The  prayer  for  relief  is  regarded,  under  the  code,  as  matter  of  form, 
aud  where  the  facts  stated  entitle  a  party  to  any  remedy,  the  com- 
plaint will  be  good  on  demurrer,  without  a  demand  for  relief.J 

And  a  prayer  in  the  last  paragraph  of  the  complaint  is  held  to  be 
sufficient  for  all.k 

The  statute  requires  that  in  actions  for  money  the  amount  claimed 
should  be  stated  in  the  demand  for  relief;1  but  the  failure  to  state  the 
amount  will  not  render  the  complaint  bad  on  demurrer."1 

425.  Prayer  can  not  enlarge,  but  may  diminish  the  cause 
of  action. — The  facts  stated  in  the  complaint  fix  the  amount  of  the 
plaintiff's  right  of  recovery,  and  this  right  can  not  be  enlarged  by  the 
demand  for  relief.11     But  it  is  sometimes  important  to  ask  for  enough, 
as  the  recovery  can  not  exceed  the  amount  asked  for  in  the  prayer. 
This  rule  was  formerly  applied  in  all  cases.0 

But  these  cases  were  overruled  in  a  later  decision,  so  far  as  they  lay 
down  this  broad  proposition.? 

The  statute  provides  that  "  the  relief  granted  to  the  plaintiff,  if  there 
be  no  answer,  can  not  exceed  the  relief  demanded  in  his  complaint ;  but, 
in  any  other  case,  the  court  may  grant  him  any  relief  consistent  with 
the  case  made  by  the  complaint  and  embraced  within  the  issue."  q 

426.  Complaint  must  be  signed  by  the  plaintiff  or  his  at- 
torney.— The  statute  provides  :  "  Sec.  358.  Every  pleading,  in  a  court 
of  record,  must  be  subscribed  by  the  party  or  his  attorney."1 

The  failure  to  sign  the  pleading  is  taken  as  a  formal  defect,  and,  in 
the  supreme  court,  it  will  be  considered  as  amended  if  no  objection  is 
made  in  the  court  below.8 

But  where  a  motion  is  made,  in  the  court  below,  to  strike  the  plead- 

(j)  Lowry  v.  Dutton,  28  Ind.  473;  233;    Roberts   v.    Muir,    7   Ind.   544; 

Goodall  v.  Mopley,  45  Ind.  353 ;  Baker  O'Neal  v.  Wade,  3  Ind.  410;   Billingsly 

v.  Armstrong,  57  Ind.  189.  v.  Dean,  11  Ind.  331. 

(k)  Maladay  v.  McEnary,  30  Ind.  (p)   Webb  v.  Thompson,  23  Ind.  429; 

273.  Raymond  v.  Williams,   24  Ind.   416; 

(1)   R.  S.  1881,  2  338,  sub.  4.  Robinson   v.  Jameson,    33   Ind.   122; 

(m)  The  Louisville,  etc.,  R.  W.  Co.  Barnes  v.  Smith,  34  Ind.  516;   Baker  v. 

v.  Smith,  58  Ind.   575;   Brown  v.  By-  .Simmons,  40  Ind.  442. 

roads,  47  Ind.  435.  (q)   R.  S.  1881,  §  385. 

(n)  The    Board,   etc.,    v.    Cutler,    7  (r)   R.  S.  1881,  g  358;  Riley  v.  Mur- 

Ind.  6;  Hunter  v.  McCoy,  14  Ind.  528;  ray,  8  Ind.  354. 

Sohn  v.  The  Marion,  etc.,  Gravel  Road  (s)  Harris  u.  Osenback.  13  Ind.  445; 

Co.,  73  Ind.  77.  Lowry  v.  Dutton,  28  Ind.  473;  Fank- 

(o)  May  v.  The  State  Bank,  9  Ind.  boner  v.  Fankboner,  20  Ind.  62. 


Xn.]  PLEADINGS — THE    COMPLAINT.  289 

ing  from  the  files,  for  the  reason  that  it  is  not  signed,  it  must  be  sus- 
tained.' 

4.27.  Cross-complaint. — The  rules  of  pleading  affecting  cross- 
complaints  are  the  same  as  those  applied  to  the  original  complaint. 
They  must  state  facts  sufficient  to  constitute  a  cause  of  action  inde- 
pendent of  any  of  the  averments  in  the  original  complaint.  The  only 
difference  between  the  two  kinds  of  complaint  is,  that  one  is  by  the 
plaintiff  and  the  other  by  the  defendant,  so  far  as  the  question  of  their 
sufficiency  is  concerned." 

WHEN   COMPLAINT   SHOULD   BE  VERIFIED. 

428.  Only  necessary  as  a  rule  -where  extraordinary  relief 
is  demanded. — The  statute  requires,  in^certain  cases,  that  the  com- 
plaint shall  be  verified,  and  in  other  cases,  where  there  is  no  statutory 
provision  requiring  it,  the  supreme  court  has  held  it  to  be  necessary. 
But  the  failure  to  verify  the  complaint  is  not  cause  for  demurrer,  but 
must  be  reached  by  motion. v 

The  requirement  that  the  complaint  shall  be  sworn  to,  applies  only 
to  cases  where  some  extraordinary  remedy  is  demanded,  as  the  taking 
of  property  or  restraining  the  defendant  from  the  commission  of  some 
act  and  the  like.  In  actions  brought  by  infants,  it  is  not  necessary  that 
the  plaintiff  shall  verify  the  complaint.  It  may  be  done  by  the  nejct 
friend. w 

429.  In  replevin. — In  actions  to  recover  personal  property,  an 
affidavit  is  necessary  only  where  the  immediate  possession  of  the  prop- 
erty is  demanded.1    The  plaintiff  may  prosecute  his  action  to  final 
judgment  without  demanding  a  delivery  of  the  property  in  which  case 
no  affidavit  is  necessary.7     It  is  not  usual,  nor  is  it  necessary,  that  the 
complaint  should  be  sworn  to  even  where  the  delivery  of  the  property  is 
demanded.     The  statute  contemplates  an  affidavit  showing  the  facts 
authorizing  the  seizure  and  delivery  of  the  property ;  but  where  the 
necessary  facts  are  stated  in  the  complaint,  it  is  sufficient  to  verify  the 
complaint  without  filing  a  separate  affidavit.2 

But  as  the  affidavit  is  only  necessary  to  the  issuing  of  the  writ  for 
possession,  the  failure  to  verify  the  complaint  or  make  the  necessary 

(t)  Fankboner    v.     Fankboner,     2Q  (w)  Turner  v.  Cook,  36  Ind.  129. 

Ind.  62.  (x)  R.  S.  1881,  \  1267. 

(u)  E wins  v.Patterson,  35  Ind  326;  (y)  Catterlin  v.  Mitchell,  27  Ind. 298. 

Campbell  v.  Routt,  42  Ind.  410;  Shoe-  (z)   Minchrod   v.  Windoes.  29   Ind. 

maker  v.  Smith,  74  Ind.  71.  288. 

(v)  Post,  I  503. 
19 


290  PLEADINGS— THE    COMPLAINT.  [CHAP. 

affidavit,  can  only  affect  the  writ  and  does  not  render  the  complaint 
bad  on  demurrer. 

430.  Injunction. — The  rule  in  injunction  cases  is  much  like  that 
in  replevin.     If  the  plaintiff  demands  a  restraining  order  or  temporary 
injunction,  his  complaint  must  be  verified  ;  but  if  he  demands  an  in- 
junction only  upon  a  final  hearing,  the  verification  is  unnecessary.3 

431.  Mandate  and  prohibition. — Writs  of  mandate  and  prohi- 
bition can  issue  only  on  affidavit  and  motion.      The  writ  is  regarded, 
in  practice,  as  the  complaint,  and  the  demurrer  must  be  to  the  writ 
and  not  to  the  affidavit ;  but  the  affidavit  is  necessary  under  the  stat- 
ute, and  without  it  the  writ  will  be  quashed.1* 

432.  Attachment. — In  attachment 'an  affidavit  is  necessary.0    But 
the  affidavit  forms  no  part  of  the  complaint,  and  is  only  necessary  to 
authorize  the  issuing  of  the  writ.     The  complaint  may,  however,  if 
verified,  supply  the  place  of  the  affidavit,  where  it  contains  the  neces- 
sary facts. d 

433.  Arrest  and  bail. — In  connection  with  a  civil  proceeding,  the 
defendant  may  be  arrested  and  imprisoned  in  default  of  bail.6 

The  proceeding,  like  that  in  attachment,  is  dependent  upon  the 
original  action,  and  can  not  be  sustained  alone.  The  basis  of  the  pro- 
ceeding is  an  affidavit ;  but  where  the  arrest  is  applied  for  at  the  time 
the  action  to  recover  the  debt  is  commenced,  the  complaint  will  supply 
the  place  of  the  affidavit,  if  it  contains  the  necessary  averments  and  is 
verified/ 

434.  To  review  judgment. — In  actions  to  review  judgments  for 
error  appearing  on  the  face  of  the  record,  the  complaint  need  not  be 
verified ;  but  where  the  complaint  is  for  new  matter,  discovered  since 
the  rendition  of  the  judgment,  its  verification  is  rendered  necessary  by 
the  express  terms  of  the  statute.8 

435.  Execution  against  the  body. — The  statute  authorizes  an 
execution  against  the  body  in  certain  cases. h 

Before  such  execution  can  issue,  an  affidavit  must  be  filed  with  the 

(a)  The  Sand  Creek,  etc.,  Turnpike        (d)  Dunn  v.  Crocker,  22  Ind.  324. 
Co.   v.  bobbins.  41    Ind.  79;    Rich   v.         (e)  R.  S.  1881,  §  856  et  seq. 
Dessar,  50  Ind.  309;  R.  S.  1881,  §§  1148,         (f )  R.  S.  1881,  §  857. 

1149.  (g)  R.  S.  1881,  §617. 

(b)  11    S.  1881,  fg  1108,  1169;  Potts        (h)  R.  S.  1881,  §  791  et  se'q. 
v.  The  State,  75  Ind.  336;  post,  £  546. 

(cj   R.  S.  1881,  §913. 


XII.]  PLEADINGS — THE    COMPLAINT.  291 

clerk,  charging  the  debtor  with  fraudulently  concealing,  removing, 
conveying,  or  transferring  his  property  subject  to  execution,  with  intent 
to  defraud  and  delay  the  plaintiff,  or  charging  that  the  debtor  has 
money,  rights,  credits,  or  effects,  with  which  the  judgment,  or  some 
part  thereof,  might  be  paid,  and  which  he  fraudulently  withholds  or 
conceals,  with  a  view  to  delay  or  defraud  the  creditor.1  But  the  affida- 
vit need  not  state  specifically  the  property  fraudulently  concealed  or 
withheld.^ 

436.  Proceedings  supplementary  to  execution. — Where  au 
execution  has  been  issued  against  the  property  of  the  judgment  debtor, 
the  execution  plaintiff,  or  some  one  in  his  behalf,  may  file  an  affida- 
vit with  the  clerk  of  any  court  of  record  of  any  county,  showing 
that  such  judgment  debtor,  residing  in  the  county,   has  property, 
describing  it,  which  he  unjustly  refuses  to  apply  towards  the  satisfac- 
tion of  the  judgment;  and  upon  such  affidavit  being  filed,  the  debtor 
will  be  required  to  appear  and  answer  the  same.k    The  debtor  may 
also  be  imprisoned,  or  required  to  give  special  bail,  upon  the  proper 
affidavit  being  made  by  the  plaintiff,  his  agent  or  attorney.1     The  affi- 
davit, in  this  class  of  cases,  is  in  the  nature  of  a  complaint,  and  may 
be  tested  by  demurrer.     Some  of  the  earlier  cases  held  that  no  other 
pleadings  were  proper.™     But  the  later  cases  hold  that  pleadings  may 
be  filed  and  issues  formed  as  in  other  cases. n 

437.  Proceedings   to    revive  judgments. — Upon   the   death 
of  the  judgment  debtor  the  judgment  creditor  may  cause  the  heirs, 
devisees,  or  legatees  of  such  debtor,  or  the  tenant  of  real  property 
owned  by  him  and  affected  by  the  judgment,  and  the  personal  repre- 
sentatives of  the  decedent,  to  be  summoned  to  show  cause  why  the 
judgment  should  not  be  enforced  against  the  estate  of  the  judgment 
debtor  in  their  hands.     The  proceedings  must  be  commenced  by  the 
affidavit  of  the    judgment   creditor,  his   representative  or  attorney, 
showing  that  the  judgment  has  not  been  satisfied,  to  his  knowledge,  or 
information,  and  belief,  the  amount  due  thereon,  and  the  property 
sought  to  be  charged.     The  affidavit  may  be  in  the  form  of  a  com- 

(i)  R.  S.  1881,  §  792.  (m)  Coffin  v.  McClure,  23  Ind.  356; 

(j)  II.  S.  1881,  §  793.  Carpenter  v.  Van  Scotten,  20  Ind.  50; 

(k)  R.  S.  1881,  §816;  Mason  v.  Wes-  Cooke  v.  Ross,  22  Ind.  157;  Iglehart's 

ton,  29  Ind.  561;  Fillson  v.  Scott,  15  Prac.  336,  §43. 

Ind.  187;    Briscoe   v.  Askey,  12   Ind.  (n)  Banty   v.  Buckles,  68   Ind.  49; 

666;    "Witherow   v.   Higgins,   13   Ind.  The  Toledo,  "Wabash  and  Western  R. 

440;  Chandler  v.  Caldwell,  17  Ind.  256.  W.  Co.  v.  Howes,  68  Ind.  458;  McMa- 

(1)  R.  S.  1881,  I  817.  ban  ».  Works,  72  Ind.  19;  post,  §  637. 


292  PLEADINGS — THE    COMPLAINT.  [CHAP. 

plaint ;  but,  whether  it  is  or  not,  issues  may  be  formed  upon  the  facts 
charged  therein,  and  it  is  in  effect  a  complaint.0 

438.  Ne   exeat. — This  proceeding  is  only  authorized  in.  actions 
upon  ' '  agreements  in  writing  before  the  time  for  the  performance  of 
the  contract  expires."     It  may  be  by  a  complaint  sworn  to,  or  by  com- 
plaint and  affidavit,  showing  the  facts  required  by  the  statute.     The 
object  of  the  statute  is  to  authorize  the  plaintiff  to  sue  before  his  debt 
is  due ;  and  in  order  to  authorize  such  a  proceeding,  it  must  appear,  by 
the  affidavit,  or  sworn  complaint  of  the  plaintiff,  that  the  defendant  is 
about  to  leave  the  state  without  performing  or  making  provisions  for 
the  performance  of  the  contract,  taking  with  him  property,  moneys, 
credits,  or  effects  subject  to  execution,  with  intent  to  defraud  the 
plaintiff? 

Issues  may  be  formed  upon  the  allegations  of  the  affidavit,  as  well  as 
the  complaint,  where  they  are  separate ;  and  a  failure  to  sustain  the 
facts  charged  in  the  affidavit  must  defeat  the  en  tire  action,  as  the  right 
to  maintain  the  action  on  the  agreement,  before  due,  rests  upon  the 
facts  required  by  the  statute  to  be  stated  in  the  affidavit.*1 

The  proceeding  can  not  be  commenced  by  affidavit  alone.  There 
must  be  a  complaint/ 

439.  Habeas  corpus. — Writs  of  habeas  corpus  can  only  issue 
upon  a  complaint  verified  by  the  plaintiff  or  by  some  person  in  his 
behalf.3 

440.  Proceedings  to  contest  -wills. — In  proceedings  to  contest 
wills  the  complaint  must  be  verified.' 

It  has  been  held  to  be  sufficient  if  the  complaint  is  sworn  to  by  one 
of  the  plaintiffs." 

441.  Applications  to  set  aside  default. — The  application  is 
not  required  to  be  by  complaint.     It  may  be  by  either  a  complaint  or 
motion,  but  in  either  case  the  application  must  be  verified. T 

442.  Complaint  for  new  trial. — The  statute  does  not  require 
that  a  complaint  for  a  new  trial  for  causes  discovered  after  the  term 

(o)  R.  S.  1881,  g?  621,  622,  623.  (t)  R.  S.  1881,  §  2596. 

(p)  R.  S.  1881,  §§  1178,  1179.  (u)  Willett  v.  Porter,  42  Ind.  250. 

(q)  Iglehart's  Prac.,  p.  129.  (v)  Post,  §  461 ;  The  Toledo,  etc.,  R. 

(r)  Ramsey  v.  Foy,  10  Ind.  R.  Co.  v.  Gates,  32  Ind.  238;  Yancy  v. 

(s)  R.  S.  1881,  §  1108.  Teter,  39  Ind.  305. 


XH.]  PLEADINGS — THE    COMPLAINT.  293 

shall  be  sworn  to,w  and  the  authorities  on  the  point  are  not  uni- 
form. It  was  first  held  that  the  complaint  must  be  verified.1  In  a 
later  case,  it  was  held  to  be  unnecessary. y  But  it  has  since  been  held 
that  the  complaint  should  be  sworn  to.z 

(w)  R.  S.  1881,  §  563.  (y)  Allen  v.  Gillum,  16  Ind.  234. 

(x)  McDaniel  v.  Graves,  12  Ind.  465.        (z)  Cox  v.  Hatchings,  21  Ind.  219. 


294 


PROCEEDINGS  AFTER  COMPLAINT   FILED. 


[CHAP. 


CHAPTER  XIII. 


PROCEEDINGS  AFTER  COMPLAINT  FILED. 


SECTION . 

1.  WHERE  PART  OF  DEFENDANTS  ARE 

NOT  SERVED  WITH  PROCESS. 

443.  The  statute. 

444.  Effect  of  the  statute. 

445.  Amendment  of  section  641. 

2.  WHERE  THERE  IS  A  RETURN  OF  NOT 

FOUND. 

446.  The  statute. 

447.  Judgment  taken  against  one  de- 

fendant abates  action  as  to  oth- 
ers, unless  continued  as  to  them. 

3.  WHERE   THE   PARTIES   ARE    SERVED 

WITH   PROCESS,  OR  ENTER  AN  AP- 
PEARANCE— DEFAULT. 

448.  When  default  may  be  taken. 

449.  Default,  where  there  is  no  appear- 

ance. 

450.  Where  appearance  is  withdrawn. 

451.  Default,  on  failure  to  answer  in- 

terrogatories. 

452.  Where  a  defendant  fails  to  attend 

as  a  witness  for  plaintiff. 

453.  Answer  must  be  stricken  out  be- 

fore default  can  be  taken. 

454.  Can  not  be  taken  against  an  in- 

fant. 

455.  What  is  admitted  by  a  default. 


SECTION. 

456.  Does    not   admit   jurisdiction   of 

court,  or  that  complaint  states  a 
cause  of  action. 

457.  When  defendant  is  constructively 

summoned. 

4.  RIGHTS  OF  DEFENDANTS  AFTER  DE- 

FAULT. 

458.  May  contest  amount  of  damages. 

459.  May  appeal  to  the  supreme  court. 

5.  WHEN  AND  HOW  DEFAULT  SET  ASIDE. 

460.  The  statute. 

461.  Application  may  be  by  motion  or 

complaint. 

462.  What  motion  or  complaint  must 

contain. 

463."  How  proof  made  in  applications 
to  set  aside  default,  and  what 
may  be  controverted. 

464.  Effect    of    setting    aside    default 

taken  against  one  of  several  de- 
fendants. 

465.  Court  can  not  set  aside  default,  on 

condition  that  costs  are  paid. 

466.  Section  396  does  not  apply  to  ac- 

tions for  divorce. 

467.  The  section  applies  to  plaintiffs. 

468.  Effect  of  setting  aside  default. 


I.    WHERE     PART    OF     DEFENDANTS     ARE    NOT    SERVED 
WITH   PROCESS. 

443.  The  statute. — "  Sec.  320.  Where  the  action  is  against  two 
or  more  defendants,  and  the  summons  is  served  on  one  or  more,  but 
not  all  of  them,  the  plaintiff  may  proceed  as  follows : 

"First.  If  the  action  be  against  defendants  jointly  indebted  on  con- 


XIII.]  PROCEEDINGS  AFTER  COMPLAINT  FILED.  295 

tract,  he  may  proceed  against  the  defendant  served ;  and  if  he  recover 
judgment,  it  may  be  enforced  against  the  joint  property  of  all  and  the 
separate  property  of  the  defendant  served. 

"Second.  If  the  action  be  against  defendants  severally  liable,  he  may 
proceed  against  the  defendants  served  in  the  same  manner  as  if  they 
were  the  only  defendants,  and  may  afterward  proceed  against  those  not 
served. 

"Third.  If  all  the  defendants  have  been  served,  judgment  maybe 
taken  against  any  or  either  of  them  severally,  when  the  plaintiff  would 
be  entitled  to  judgment  against  such  defendant  or  defendants,  if  the 
action  had  been  against  them  or  any  of  them  alone."  a 

"  Sec.  321.  In  all  cases  where  judgment  has  heretofore  been  or  shall 
hereafter  be  recovered  against  one  or  more  persons  jointly  liable  on 
contract,  but  such  judgment  has  been  or  shall  be  rendered  only  against 
part  of  the  persons  liable,  for  the  reason  that  the  others  were  not  sum- 
moned and  did  not  appear,  the  plaintiff  may  proceed  against  those  not 
summoned,  and  who  did  not  appear  in  the  same  manner,  as  if  they 
were  alone  liable,  but  the  complaint  must  allege  the  facts  as  afore- 
said."11 

444.  Effect  of  the  statute. — At  common  law  but  one  judgment 
could  be  recovered  on  a  joint  contract,  and  the  recovery  of  judgment 
against  one  of  the  joint  obligors  released  the  others.0 

The  sections  of  the  code  above  quoted  were  intended,  no  doubt,  to 
remedy  this  seeming  defect.  -Whether  this  result  has  been  attained 
has  been  seriously  considered  by  the  supreme  court  prior  to  the  amend- 
ment of  section  641,  in  1881.d 

The  section,  as  it  originally  stood,  did  not  authorize  the  taking  of  a 
judgment  against  those  not  served,  but  provided  that  the  defendants 
"  who  were  not  originally  summoned  to  answer  the  complaint,  may  be 
summoned  to  show  cause  why  they  should  not  be  bound  by  the  judg- 
ment in  the  same  manner  as  if  they  had  been  originally  summoned."6 

It  was  held  in  Erwin  v.  Scotten  that  the  two  sections,  41  and  641, 
should  be  construed  together,  and  that  the  rule  that  existed  at  com- 
mon law,  that  all  those  jointly  liable  must  be  sued  together,  and  that 
a  judgment  against  one  released  the  others,  was  not  changed  by  either 
section.  The  only  effect  of  the  two  sections,  as  construed  by  the  su- 
preme court,  was  to  authorize  the  plaintiff  to  take  judgment  against 

(a)  R.  S.  1881,  I  320.  (d)  Erwin  v.  Scotten,  40  Ind.  380; 

(b)  R.  S.  1881,  ?  321.  R.  S.  1881,  §  321. 

(c)  Freeman  on  Judg.,  §  231,  and         (e)  2  R.  S.  1876,  p.  265,  \  641. 

authorities  there  cited. 


296  PROCEEDINGS  AFTER   COMPLAINT   FILED.  [CHAP. 

one  defendant,  and  afterward  bring  the  defendant  not  served  before 
the  court,  and  bind  him  by  the  same  judgment.  This  did  not  au- 
thorize two  judgments.  Its  only  effect  was  to  give  the  plaintiff  the 
right  to  take  a  judgment  at  once,  without  waiting  to  get  all  of  the  par- 
ties before  the  court,  as  he  must  have  done  at  common  law,  under  the 
penalty  of  releasing  all  those  not  served.  The  section  had  not  then, 
and  has  not  now,  any  effect  upon  the  right  of  a  plaintiff  to  sue  a  part 
of  several  joint  obligors.  It  only  affects  the  right  to  take  judgments 
where  all  have  been  sued.  If  the  plaintiff  sues  one  of  several  joint 
obligors  and  recovers  judgment,  those  not  sued  are  released  as  at  com- 
mon law. 

445.  Amendment  of  section  641. — By  the  revision  of  1881  sec- 
tion 641  of  the  code  is  materially  changed.  It  provides  that  the 
plaintiff  may  proceed  against  those  not  summoned,  and  who  did  not 
appear  "  in  the  same  manner  as  if  they  were  alone  liable,  but  the 
complaint  must  state  the  facts." f 

Under  the  section  as  amended  it  can  no  longer  be  said  that  the  com- 
mon-law rule  is  not  changed.  If  the  parties  are  all  joined  in  the  ac- 
tion, but  some  have  not  been  served,  they  may  be  proceeded  against 
not  as  jointly  liable,  but  "  as  if  they  were  alone  liable."  The  practical 
effect  of  the  section,  as  amended,  is  to  make  the  procedure  the  same 
in  actions  on  joint  as  upon  several  contracts,  after  the  action  has  once 
been  properly  instituted,  save  that  in  case  6f  a  joint  liability  the  com- 
plaint must  state  the  facts  showing  the  recovery  of  a  judgment  against 
those  originally  summoned,  and  that  the  present  defendants  were  not 
summoned  before  the  recovery  of  the  original  judgment.  The  pay- 
ment of  either  of  the  judgments  must  necessarily  satisfy  the  other, 
except  as  to  cost.  While  the  mode  of  procedure  in  recovering  the 
judgments  is  changed,  the  original  liability  of  the  parties  to  the  con- 
tract must  be  the  same,  and  a  payment  of  one  of  the  judgments  must 
satisfy  the  other.  And  it  should  not  be  overlooked  that  parties  jointly 
liable  must  be  jointly  sued,  as  before  the  amendment.  If  one  is  sued 
alone,  and  judgment  recovered  against  him,  the  other  joint  contractors 
are  thereby  released,  and  the  rule  is  the  same  where  all  have  been  sued 
and  served  with  process.  The  statute  only  affects  cases  where  all  have 
been  sued  and  a  part  not  summoned.^ 

(f)  K.  S.  1881,  §  321.  man,  21  Ind.  29;  Maiden  v.  Webster, 

(g)  Gibbons  v.  Surber,  4  Blkf.  155;     30  Ind.  317;  The  State  v.  Koberts,  40 
Morris  v.  Knight,  1  Blkf.  106;  Palmer     Ind.  451. 

v.  Crosby,  1   Blkf.  139;  Archer  v.  Hei- 


XIII.]  PROCEEDINGS   AFTER   COMPLAINT   FILED.  297 

2.    WHERE  THERE   IS   A   RETURN   OF   "  NOT   FOUND." 

446.  The  statute.—"  Sec.  322.  When  there  is  a  return  of  '  not 
found,'  as  to  any  of  the  defendants,  such  return  shall  be  suggested  on 
the  record,  and  the  plaintiff  may  continue  the  cause  as  to  them  for 
another  summons  at  his  option ;   and  he  may  in  either  case  proceed 
against  the  defendants  served  in  time."  h 

Under  the  construction  given  tiii.-  section  by  the  supreme  court,  it 
was  of  no  force  whatever  prior  to  the  amendment  of  section  641,  as  it 
was  held  not  to  apply  to  actions  on  joint  contracts.1 

In  the  case  cited,  the  supreme  court  was  divided  in  opinion  as  to  the 
construction  that  should  be  given  to  this  section,  the  majority  of  the 
court  holding  that  it  only  applied  to  actions  on  several  contracts, 
while  Downey,  J.,  in  a  dissenting  opinion,  maintained  that  it  should 
be  applied  to  joint  as  well  as  several  contracts.  If  the  section  is 
properly  confined  to  actions  on  several  contracts,  its  enactment  was  en- 
tirely unnecessary,  as  the  plaintiff  might,  under  section  320,  take  the 
same  course  provided  for  by  this  section.  The  same  thing  could  have 
been  done  without  any  statutory  provision.  As  has  been  shown,  there 
is  no  practical  difference,  since  the  amendment  of  section  641,  between 
joint  and  several  contracts.  So  far  as  the  procedure  is  concerned,  sec- 
tion 322  might,  with  perfect  propriety  and  consistency,  be  extended  to 
both  kinds  of  actions.  It  would  probably  have  beeu  better  if  this  sec- 
tion had  been  omitted  in  the,  revision  of  the  code,  as  it  seems  to  be  un- 
necessary, and  confers  no  additional  right  upon  the  plaintiff. 

447.  Judgment  taken  against   one   defendant   abates   ac- 
tion as  to  others,  unless  continued  as  to  them. — Where  there 
has  been  service  on  part  of  the  defendants  and  the  others  not  found  under 
section  322,  the  return  of  "  not  found"  should  be  suggested  on  the  rec- 
ord.    It  is  not  necessary  that  the  return  should  be  entered  of  record. 
The  statute  only  requires  that  the  suggestion  should  be  entered  of  rec- 
ord.J     If  judgment  is  taken  against  part  of  the  defendants,  without 
continuing  the  action  as  to  the  others,  the  action  abates  as  to  those  not 
served. 

The  plaintiff  is  not  bound  to  continue  as  to  those  not  summoned, 
even  in  an  action  on  a  joint  contract.  It  is  optional  with  him  either 
to  dismiss  or  continue  as  to  them,  but  if  he  desires  to  follow  up  his 
remedy  against  the  defendants  who  are  not  before  the  court,  it  is  im- 
portant for  him  to  continue  as  to  them,  and  although  there  may  be  a 
continuance  without  a  suggestion  of  not  found  on  the  record,  it  is  the 

(h)  R.  S.  1881,  ?  322.  (j)  Erwin  r.  Scotten,  40  Ind.  389. 

(i)  Erwin  v.  Scotten,  40  Ind.  389. 


298  PROCEEDINGS   AFTER   COMPLAINT   FILED.  [CHAP. 

better  practice  to  follow  section  822,  by  having  the  suggestion  of  not 
found,  followed  by  a  continuance,  which  should  precede  the  judgment 
against  the  parties  before  the  court. 


3.    WHERE  THE    PARTIES   ARE   SERVED  WITH    PROCESS  OR 
ENTER   AN   APPEARANCE — DEFAULT. 

448.  When  default  maybe  taken. — The  purpose  of  this  sec- 
tion is  not  to  consider  the  practice  where  the  defendant  appears  and 
contests  the  action,  but  those  cases  where,  after  being  properly  sum-' 
moned,  or  having  entered  an  appearance,  refuses  or  neglects  to  plead 
or  take  some  subsequent  step  in  the  case,  on  account  of  which  a  default 
may  be  taken  against  him.     This  may  occur  where  a  defendant,  prop- 
erly served  with  process,  fails  to  plead,  or  where,  after  having  appeared 
to  the  action  and  answered,  he  neglects  or  refuses  to  comply  with  some 
rule  of  the  court,  as,  for  instance,  a  rule  to  answer  interrogatories. 
The  cases  in  which  defaults  may  be  taken,  and  the  effect  of  the  de- 
fault, as  well  as  the  practice  in  setting  aside  judgments  in  such  cases, 
and  obtaining  such  other  relief  as  may  be  given  by  statute,  will  here 
be  considered.  (1) 

449.  Default  where  there  is  no  appearance. — On  the  second 
day  of  the  term,  or  upon  such  other  subsequent  day  as  the  summons 
may  be  made  returnable,  the  plaintiff  may  have  the  defendants  called. 
If  no  appearance  is  entered,  either  in  person  or  by  attorney,  a  default 
may  be  taken. k     But  a  default  can  not  be  taken  on  the  first  day  of 
the  term,  although  the  summons  is  made  returnable  on  that  day.1 

Nor  can  a  rule  of  court  change  the  statutory  provision  that  defaults 
may  be  taken  only  on  the  second  and  subsequent  days.'1-' 

It  is  important,  where  a  judgment  is  taken  by  default,  that  summons 
should  be  properly  issued  and  served,  as  a  judgment  by  default,  with- 
out proper  service,  can  not  be  upheld." 

450.  Where  appearance  is  withdrawn. — The  defendant  may 
withdraw  his  appearance,  unless  objected  to  by  the  plaintiff.     If,  how- 
ever, the  appearance  has  been  entered  without  the  service  of  process, 
the  court  may,  in  its  discretion,  refuse  to  permit  the  appearance  to  be 
withdrawn.0 

(k)  R.  S.  1881,  §§400,401;  Langdon     ley  v.  Gaff,   56  Ind.  331;    Mitchell  v. 
v.  Bullock,  8  Ind.  341 ;  Macy  v.  Eller,     McCorkle,  69  Ind.  184. 
11  Ind.  352;  Heed  v.  Spayde,  56  Ind.         (m)  Clegg  v.  Fithiun,  32  Ind.  90. 
394.  (n)  Fee  v.  The  State,  74  Tnd.  66. 

(1)  Clegg  v.  Fithian,  32  Ind.  90;  Jel-         (o)  Youns*  v.  Dickey,  63  Ind.  31. 

(1)  See  Vol.  3,  pp.  186,  187. 


PROCEEDINGS   AFTER   COMPLAINT    FILED.  299 

The  same  rule  applies  where  there  is  a  defect  in  the  summons  or  its 
service,  that  is  waived  by  au  appearance  to  the  action.? 

If  the  appearance  is  withdrawn  after  an  answer  or  demurrer  has 
been  filed,  the  withdrawal  of  the  appearance  withdraws  such  pleadings, 
and  the  cause  stands  precisely  as  if  no  appearance  had  been  entered, 
and  a  default  may  then  be  taken. q 

451.  Default  on  failure  to  answer  interrogatories. — Where 
a  defendant  is  ruled  to  answer  interrogatories,  upon  his  failure  to  do 
so,  a  default  may  be  taken  against  him,  after  striking  out  his  answer. 

452.  Where  a  defendant  fails  to  attend  as  a  witness  for 
plaintiff. — As  under  our  practice  the  parties  are  competent  to  testify, 
either  party  may  have  the  other  subpoenaed  as  a  witness  and  compel 
his  attendance/     In  addition  to  the  ordinary  mode  of  compelling  the 
attendance  of  a  witness  by  attachment,  where  the  defendant  disobeys 
the  subpoena,  a  default  may  be  taken  against  him.8 

453.  Answer  must  be  stricken  out  before  default  can  be 
taken. — Where  the  defendant  has  once  appeared  to  the  action  and 
filed  au  answer,  no  default  can  be  taken  against  him,  although  he  may 
afterwards  fail  to  appear.1 

The  same  rule  applies  where  a  demurrer  to  the  complaint  has  been 
filed  by  the  defendant  and  remains  undisposed  of.u  . 

It  follows  that  before  a  default  can  be  taken  against  a  defendant  for 
failure  to  comply  with  a  rule  of  court,  or  attend  as  a  witness  where  he 
has  appeared  and  answered  the  complaint,  or  has  a  demurrer  to  the 
complaint  undisposed  of,  his  pleading  must  first  be  stricken  out. 

The  authorities  cited,  it  Avill  be  noticed,  apply  to  answers  in  bar  of 
the  action.  The  same  rule  must  apply  to  any  other  answer,  so  long  as 
it  remains  undisposed  of.  The  true  rule  is,  that  a  default  can  not  be 
taken  where  an  issue  of  law  or  fact  has  been  joined  and  remains  undis- 
posed of.  Therefore,  if  a  plea  in  abatement  has  been  filed,  an  issue 
has  been  presented  that  must  be  determined  before  a  default  can  be 

(p)  The   New   Albany,   etc.,  R.  R.         (t)  Harris  v.  Muskingum  Man.  Co., 

Co.  v.  Combs,  13  Ind.  490.  4    Blkf.   267;    Maddox   v.   Pulliam,   5 

(q)  Young   v.  Dickey,   63   Ind.  31;  Blkf.  205;    Ellison  v.  Nickols,  1  Ind. 

Smith  v.  Foster,  59  Ind.  595;  Carver  577;  Kir  by  v.  Holmes,  6  Ind.  33;  Ter- 

..    Williams,   10  Ind.   267;    Sloan   v.  rell  v.  The  State,  68  Ind.  155;  Carver 

Whitbank,  12  Ind.  444.  e.  Williams,  10  Ind.  267;  Coffin  v.  The 

(r)  li.  Z.  1881,  \l  496,  509.  Evansville,  etc.,  R.  R.  Co.,  7  Ind.  413; 

(s)  R.  S.  1881,  §  513 ;  Nelson  v.  Nee-  Woodward  v.  Wous,  18  Ind.  296. 
ley,  63  Ind.  194;  Belton  v.  Smith,  45        (u)  Kellenberger  v.  Perrin,  46  Ind. 

Ind.  291.  282. 


300  PROCEEDINGS   AFTER   COMPLAINT   FILED.  [CHAP. 

taken  ;  but  where  an  answer  in  abatement  has  been  filed  and  decided 
against  a  defendant,  a  default  may  be  taken  against  him  on  his  failure 
to  answer  over.v 

It  has  been  held  by  the  supreme  court  that,  where  an  answer  has 
been  filed  and  the  defendant  refuses  to  attend  as  a  witness,  the  court 
may,  instead  of  striking  out  his  answer,  render  judgment  against  him 
as  upon  confession. w 

This  may  be  said  to  be  within  the  spirit  of  the  statute,  as  it  leads  to 
the  same  result,  but  besides  the  fact  that  the  court  thus  renders  judg- 
ment as  upon  confession,  when  judgment  has  not  been  confessed,  it  is 
better  to  follow  a  statute  that  is  so  plain  as  not  to  be  misunderstood, 
rather  than  resort  to  some  other  remedy  that  may  be  within  its  spirit. 

454.  Can  not  be  taken  against  an  infant. — Infants  must  ap- 
pear as  defendants  by  guardian  ad  litem,* 

No  default  can  be  taken  against  an  infant  defendant,  nor  has  the 
guardian  ad  litem  the  power  to  waive  the  service  of  process. y  He  has 
no  authority  to  file  an  answer  until  he  has  ascertained  that  the  infant 
defendants  have  been  properly  served  with  process.  No  steps  can  be 
legally  taken  against  such  defendants  until  they  have  been  served  with 
process,  a  guardian  ad  litem  has  been  appointed  and  an  answer  has 
been  filed  by  him.2 

The  rule  goes  still  farther.  After  answer  filed  by  guardian  ad  litem, 
proof  of  the  material  allegations  of  the  complaint  must  be  made  to 
authorize  a  recovery.  No  admission  or  waiver  can  be  made  by  the 
guardian  ad  litem  that  will  supply  the  omission  to  make  such  proof. a 
But  where  the  evidence  is  not  in  the  record,  and  there  is  nothing  on 
the  face  of  the  record  to  show  that  the  judgment  was  given  without 
evidence,  the  supreme  court  will  presume  that  the  judgment  was 
rendered  on  proper  evidence.13 

(v)  K.  S.  1881,  §  365.  Parker,  1  Ind.  374;  Driver  v.  Driver, 

(w)  Belton  v.  Smith,  45  Ind.  291.  6   Ind.   286;    Knox   v.  Coffey,  2   Ind. 

(x)  R.  S.  1881,  §  258;  ante,  §  93.  161 ;   Martin  v.  Starr,  7  Ind.  224;  Al- 

(y)  Bobbins  v.  Bobbins,  2  Ind.  74;  exander  v.  Frary,  9  Ind.  481;  McEn- 

Pugh  v.  Pugh,  9  Ind.  132;  People  v.  dree  v.  McEndree,  12  Ind.  97;  Abdil 

Stanley,  G  Ind.  410;   Martin  r.  Storr,  7  v.    Abdil,   26    Ind.   287;    Hawkins   v. 

Ind.  224;  Doe  v.  Anderson.  5  Ind.  33.  Hawkins,  28  Ind.  66. 

(z)  Pugh     v.    Pu<*h.    9    Ind.    132;  (b)   Alexander  v.  Frary,  9  Ind.  481 ; 

Hough  v.  Canby.  8  Blkf.  301  ;  Abdil  w.  McEndree  v.  McEndree,  12   Ind.  97; 

Abdil,  26  Ind.  287;  Alexander  v.  Fra-  Bennett  v.  Welch,  15  Ind.  332;  Hyatt 

ry,  9  Ind.  481.  v.  Hyatt,  33  Ind.  309,  313  (dissenting 

(a)  Hough   v.  Doyle,   8    Blkf.   300;  opinion). 

Hough  v.  Canby,  8  Blkf.  301 ;  Grain  v. 


XIII.]  PROCEEDINGS   AFTER   COMPLAINT   FILED.  301 

It  was  otherwise  under  the  old  chancery  practice,  which  required 
that  the  transcript,  in  a  chancery  suit,  should  contain  all  the  evidence 
given  in  the  court  below.0 

455.  "What  is  admitted  by  a  default ;  the  statute. — A  de- 
fault does  not  admit  that  the  plaintiff  is  entitled  to  recover  the  amount 
demanded  in  his  complaint,  nor  the  amount  alleged  or  shown  by  the 
facts  stated  to  be  due.  In  some  of  the  states  where  the  facts  stated 
in  the  pleadings  must  be  sworn  to,  it  is  expressly  provided  that  the 
amount  indorsed  on  the  summons  in  an  action  for  money  shall  fix  the 
amount  of  the  judgment,  where  the  defendant  fails  to  answer.  Our 
code  provides:  "  Every  material  allegation  of  the  complaint  not  con- 
troverted by  the  answer,  and  every  material  allegation  of  new  mat- 
ter in  the  answer  not  controverted  by  the  reply  shall,  for  the  pur- 
pose of  the  action,  be  taken  as  true;  but  the  allegations  of  new 
matter  in  a  reply  are  to  be  deemed  controverted  by  the  adverse 
party,  as  upon  a  direct  denial  or  avoidance,  as  the  case  may  require. 
Allegations  of  value  or  amount  of  damage  shall  not  be  considered  as  true 
by  the  failure  to  controvert  them;  but  in  actions  upon  accounts,  in  which 
an  itemized  bill  of  particulars,  the  correctness  of  which  is.duly  affirmed 
or  sworn  to  by  the  plaintiff  or  some  one  in  his  behalf,  has  been  filed 
with  the  complaint,  a  default  by  the  defendant  shall  be  deemed  to  ad- 
mit the  correctness  of  the  bill  of  particulars  as  sworn  or  affirmed  to, 
and  judgment  may  be  rendered  thereon  without  further  evidence. "d 

With  the  exception  of  actions  on  account,  where  an  itemized  bill  of 
particulars  is  filed  with  the  complaint  and  sworn  to,  a  default  admits 
"the  cause  of  action  and  the  material  and  traversable  averments  of 
the  complaint,  and  that  something  is  due  the  plaintiff,  but  leaves  the 
amount  open  to  be  determined  by  the  proof.6 

In  an  early  case  in  our  own  supreme  court  a  different  view  seem?  to 
have  been  taken  of  the  effect  of  a  default/ 

(c)  Bennett  v.  "Welch,  15  Ind.  332;  619;  Welch  v.  Wadsworth,  30  Conn. 
dissenting  opinion  in  Hyatt  v.  Hj^att,  149 ;  Saunders'  PI.  and  Ev.,  vol.  2,  pt. 
33  Ind.  309,  313.  1,  p.  218;   De  Gaillon  r.  L'Aigle,  1  R.  & 

(d)  R.  S.  1881,  §  383.  P.  368;   Stephens  v.  Pell,  2  Dowl.  P. 

(e)  Briggs  v.  Sneghan,  45  Ind.  14,  C.  629;  Williams  v.  Cooper,  3  Dowl. 
24,  citing  Turner  v.  Carter,  1    Head.  P.  C.  204;  Blackwell  v.  Green,  Lofft. 
520;  Town  of  Ottawa  r.  Foster,  20  111.  82;  S.  P.  Anon.,  Lofft,  372;  Greene  v. 
296;  Chicago  and  Rock  Island  R.  R.  Hearne,  3  T.  R  301;  Anon.,  3  Wils. 
Co.  v.  Ward,  16  111.522;  Herrington  v.  155;    Bevis  v.  Lindsell,  2  Stra.  1149. 
Stevens,  26  111.  298;  Saltus  v.  Kipp,  5  See  also  R.  S.  1881,  §§  345,  401;  31, •- 
Duer,  646;  Willson  v.  Willson,  5  Fos-  Kinney  v.  The  State,  101  Ind.  35£ 

ter  (N.  H.),  229;    Dates  v.  Loomis,  5         (f)  May  v.  The  State  Bank,  9  Ind. 
Wend.   134;    Brill  v.   Neale,  1    Chit.    233. 


302  PROCEEDINGS  AFTER  COMPLAINT   FILED.  [CHAP. 

In  the  case  cited  the  action  was  brought  on  a  bill  of  exchange  for 
$5,000.  The  demand  in  the  complaint  was  for  $3,500.  There  was  a 
default,  and  after  hearing  the  evidence,  judgment  was  rendered  in  the 
court  below  for  §5,357.  It  was  claimed,  on  appeal,  that  the  plaintiff 
could  not  recover  more  than  the  amount  for  which  judgment  was  de- 
manded in  the  complaint.  The  court  so  held,  and  properly  ;  but,  in- 
stead of  placing  the  decision  upon  the  ground  that  where  proof  is  made 
in  case  of  default  no  greater  amount  can  be  recovered  than  is  de- 
manded in  the  complaint,  it  is  put  upon  the  ground  that  the  default 
was  an  admission  that  that  amount  was  due,  the  court  saying:  "The 
default  on  tohich  the  plaintiff  founds  her  judgment  admitted  an  indebtedness 
to  the  amount  of  $3,500,  and  no  more." 

This  case  is  not  referred  to  in  the  later  one  of  Briggs  v.  Sneghau, 
but  the  two  are  so  clearly  in  conflict  that  the  first  must  be  regarded  as 
overruled. 

456.  Does  not  admit  jurisdiction  of  court  or  that  com- 
plaint states  a  cause  of  action. — A  defendant,  against  whom  a 
default  has  been  taken,  may  appeal  to  the  supreme  court,  and  although 
his  default  admits  that  the  plaintiff  has  a  cause  of  action,  it  does  not 
admit  that  a  cause  of  action  is  stated  in  the  complaint  or  that  the  court 
has  jurisdiction.   These  questions  may  be  raised  on  appeal.8    But  under 
the  revised  code,  as  amended,  the  objection  that  the  action  was  brought 
in  the  wrong  county  is  waived  by  the  failure  to  demur  or  answer,  and 
the  default  would  admit,  in  such  case,  that  the  action,  in  this  re- 
fepect,  is  properly  brought. 

In  divorce  cases,  judgment  can  not  be  taken  by  default.  The  facts 
alleged  in  the  complaint  must  be  proved. h 

457.  When    defendant    is    constructively    summoned. — 
Where  the  defendant  has  only  been  constructively  summoned,  the  al- 
legations of  the  complaint  are  not  admitted,  but  must  be  proved.    The 
statute  provides:  "  The  statements  of  a  complaint  against  a  defendant 
constructively  summoned,  and  who  has  not  appeared,  except  such  as 
are  for  his  benefit,  shall  not  be  taken  as  true,  but  must  be  established 
by  proof." '    This  statute  does  not  apply  where  the  defendant  has  once 
appeared  to  the  action. 

(g)  K.   S.   1881,   \   343;    Strader   v.  30  Ind.  398;    Newhouse  v.  Miller,  35 

Manville,    33    Ind.    Ill;    Hallett    v.  Ind.  463 ;  Kiley  v.  Butler,  36  Ind.  51  ; 

Evans,  28  Ind.  61 ;  Barnes  v.  Conner,  Smith  v.  Carley,  8  Ind.  451. 

39  Ind.  294;  Barnes  v.  Bell,  39  Ind.  (h)  Scott  v.  Scott,  17  Ind.  309. 

328;   Wright  v.  Norris,  40  Ind.  247;  (i)  K.  S.  1881,  \  387. 
Busk.  Prac.  36, 171 ;  Livesey  v.  Livesey, 


XIII.]  PROCEEDINGS   AFTER   COMPLAINT   FILED.  303 

4.    RIGHTS   OF   DEFENDANT  AFTER   DEFAULT. 

458.  May  contest  amount  of  damages. — It  has  been  shown 
that  a  defendant,  by  failing  to  answer  and  permitting  a  default  to  go 
against  him,  does  not  admit  the  amount  to  be  due  that  is  demanded  in 
tiie  complaint.  Without  proof,  the  plaintiff  can  recover  no  more  than 
nominal  damages.  Not  only  is  the  plaintiff  bound,  after  a  default,  to 
prove  his  damages,  but  the  defendant  may,  without  asking  to  have  the 
default  set  aside,  appear  in  the  action  and  contest  the  amount  of  dam- 
ages. For  this  purpose,  he  may  appear  by  counsel  and  demand  a  juryJ 

The  case  of  Briggs  v.  Sueghan  was  carefully  considered,  and  the 
rule  clearly  stated  after  a  thorough  review  of  the  authorities.  The 
court  say:  "  We  think  that,  from  the  foregoing  authorities,  it  should 
be  considered  as  settled  that  a  judgment  by  default  admits  the  cause 
of  action  and  the  material  and  traversable  averments,  and  that  some- 
thing is  due  the  plaintiff,  but  leaves  the  amount  open  to  be  determined 
by  the  proof;  that  in  the  assessment  of  damages  the  defendant  may 
appear  and  demand  a  trial  by  a  jury ;  that  he  may  cross-examine  the 
witnesses  called  by  the  plaintiff;  that  he  may  call  other  witnesses  and 
prove  any  matter  which  properly  goes  to  extenuate  or  mitigate  the 
damages ;  that  he  may  prove  all  the  facts  and  circumstances  relating 
to  any  immediate  provocation  which,  in  judgment  of  law,  tends  to 
mitigate  damages ;  that  he  may  require  the  court  to  give  to  the  jury 
proper  instructions  as  to  the  measure  and  extent  of  damages ;  that  he 
may,  by  himself  and  counsel,  argue  the  question  of  damages ;  that  he 
may  move  for  a  new  trial ;  that  he  may  reserve,  by  bill  of  exceptions, 
any  question  affecting  the  assessment  of  damages ;  but  that  the  right 
of  a  defendant  in  an  inquest  of  damages  does  not  extend  so  far  as  to 
allow  him  to  introduce  a  substantive  defense,  but  subject  to  this  quali- 
fication, he  may  show  that  the  plaintiff  has  no  legal  claim  to  any  but 
nominal  damages." 

This  authority  certainly  carries  the  right  of  a  defendant  to  appear 
and  defend  to  the  farthest  extent.  The  decision  is,  however,  fully 
borne  out  by  the  adjudicated  cases  in  other  states  and  in  England. 
The  court  say  the  right  of  the  defendant  does  not  extend  so  far  as  to 
allow  him  to  introduce  a  substantive  defense.  If  the  court  had  in- 
formed us  what  was  meant  by  a  "  substantive  defense,"  the  rule  laid 
down  would  have  been  clearly  stated.  Strictly  speaking,  the  right  of 
a  defendant  after  default  does  not  extend  so  far  as  to  allow  him  to  in- 
troduce any  defense.  His  only  right  is  to  resist  the  amount  of  the 
plaintiff's  recovery  by  proving  the  facts  and  circumstances,  directly 

(j)  Briggs  v.  Sneghan,  45  Ind.  14,  and  cases  cited;  ante,  §455. 


304  PROCEEDINGS   AFTER   COMPLAINT   FILED.  [CHAP. 

connected  with  the  question  of  damages,  that  might  have  been  proved 
by  him  under  the  general  denial,  in  mitigation  of  damages,  if  such 
an  answer  had  been  filed.  Although  to  prove  a  partial  payment  would 
affect,  directly,  the  amount  of  the  plaintiff's  damages,  the  defendant 
could  not  be  allowed  to  prove  payment  after  default.  This  would  be 
to  allow  him  to  prove  a  defense  that  must,  under  the  code,  be  specially 
pleaded. k  The  same  must  be  true  of  every  affirmative  defense  that 
must  be  specially  pleaded.  This  is  what  is  meant,  it  is  presumed,  by 
a  substantive  defense. 

Although  the  defendant  may  contest  the  amount,  he  can  not  be  al- 
lowed to  prove  that  the  plaintiff  is  not  entitled  to  recover  any  damages. 
His  default  being  an  admission  of  the  right  of  the  plaintiff  to  recover 
nominal  damages,  there  must  be  judgment  in  his  favor  at  least  to  that 
extent.1 

459.  May  appeal  to  the  supreme  court. — It  has  been  shown 
that  a  default  does  not  admit  the  jurisdiction  of  the  court,  nor  that  the 
complaint  states  facts  sufficient  to  constitute  a  cause  of  action.     It 
follows  that  a  defendant,  against  whom  a  default  has  been  taken,  may 
appeal  to  the  supreme  court  and  test  these  questions  in  that  court.    The 
manner  of  taking  the  appeal,  and  other  questions  arising  under  this 
branch  of'  the  practice,  will  be  more  fully  considered  in  the  chapter  on 
appeals. 

5.   WHEN    AND    HOW   DEFAULT   SET   ASIDE. 

460.  The  statute. — The  statute  provides  that  the  court  "shall  re- 
lieve a  party  from  a  judgment  taken  against  him,  through  his  mistake, 
inadvertence,  surprise,  or  excusable  neglect."" 

As  this  section  originally  stood,  it  was  within  the  discretion  of  the 
lower  court  to  grant  or  refuse  the  relief,  but  the  section,  as  amended 
by  the  act  of  March  4,  1867,  makes  it  the  imperative  duty  of  the 
court  to  relieve  a  party  where  he  brings  himself  within  the  statute." 

461.  Application    may  be   by  motion  or  complaint. — The 
statute  does  not  point  out  the  means  by  which  a  party  may  obtain  re- 
lief in  case  of  default.     It  must  depend  to  some  extent  upon  the  time 
when  the  application  for  relief  is  made.     If  made  at  the  same  term,  it 
has  been  held  that  no  complaint  or  summons  is  necessary,  but  the  ap- 

(k)  Hubler  v.  Pullen,   9   Ind.  273;  (m)  R.  S.  1881,  §  396. 

BuKer  r.  Kistler,  13  Ind.  63.  (n)  Smith  v.  Noe,  30  Ind.  117;  Cav- 

(1)  Ellis   v.  The  State,  2  Ind.  262;  enaugh   r.  The  Toledo,  Wabash,  etc, 

Runnion  v.  Crane,  4  Blkf.  466;  Bick.  R.  R.  Co,  49  Ind.  149;  Phelps  v.  Os- 

Prac.  332.  good,  34  Ind.  150. 


XIII.]  PROCEEDINGS   AFTER   COMPLAINT   FILED.  305 

plication  may  be  by  motion.0  And  no  notice  to  the  opposite  party  is 
necessary.  P 

It  would  certainly  be  the  better  practice,  where  the  application  is 
made  at  a  subsequent  term,  to  require  that  a  complaint  should  be  filed 
and  summons  issued  as  ia  other  cases.  This  is  the  practice  in  actions 
for  a  new  trial.'1  But  the  statute  does  not  require  it,  and  the  supreme 
court  has  held  it  to  be  unnecessary/ 

462.  "What  motion  or  complaint  must  contain. — The  statute 
is  silent  on  this  point  also.  We  must  look  to  the  decided  cases  to  deter- 
mine what  must  be  shown  by  a  party  to  entitle  him  to  relief  under  the 
statute.  It  has  been  held  that  a  party  can  only  obtain  relief  from  a 
default  under  the  latter  clause  of  section  396. 8  The  motion  or  com- 
plaint must  be  supported  by  affidavit.1 

And  must  show  the  following  facts  : 

First.  That  a  judgment  has  been  taken  against  the  party  in  the 
same  court  to  which  the  application  is  made." 

Second.  That  he  has  a  valid  or  meritorious  defense  to  the  action.7 

Third.  The  defense  must  be  set  out.w 

Fourth.  The  facts  showing  that  the  judgment  was  taken  through  his 
mistake,  inadvertence,  surprise,  or  excusable  neglect.1 

What  facts  must  be  alleged  to  bring  a  party  within  the  statute 
can  not  be  definitely  stated.  The  term  "  excusable  neglect"  is  a  very 
general  term,  and  each  case  must  necessarily  depend  upon  its  own  facts 
and  circumstances,  without  any  definite  rule  by  which  the  court  can  be 

* 

governea.  All  that  can  be  done  here  is  to  cite  the  decisions  of  the 
supreme  court  on  the  point.  Where  the  facts  are  substantially  the 
same,  the  decision  may  be  regarded  as  good  authority,  otherwise  it  can 
be  of  but  little  weight.  Each  case  must  to  a  great  extent  stand  alone. 

(o)  Frazier  v.  Williams,  18  Ind.  416.  Nord  v.  Marty,  56  Ind.  531 ;  Stevens 

(p)  Burnside  v.  Ennis,  43  Ind. 411;  v.  Helm,  15  Ind.  183;  Nutting  v.  Lo- 

Lake  v.  Jones,  49  Ind.  297;  Yancy  v.  sance,  27  Ind.  37;  Blake  v.  Stewart,  29 

Teter,  39  Ind.  305.  Ind.  318. 

(q)  K.  S.  1881,  §  424.  (w)  Goldsberry   v.  Carter,   28   Ind. 

(r)  Lake    v.   Jones,    49    Ind.    297;  59;    Frost    v.    Dodge,    15    Ind.    139; 

Kemp  v.  Mitchell,  29  Ind.  163.  Yancy  v.  Teter,  39  Ind.  305;  The  To- 

(s)  Lake    v.  Jones,    49    Ind.    297;  ledo,  etc.,  R.  R.  Co.  v.  Gates,  32  Ind. 

Kemp  v.  Mitchell,  29  Ind.  103.  238. 

(t)  The   Toledo,   etc.,  R.  R.   Co.   77.         (x)  Yancy   v.  Teter,    39   Ind.   305; 

Gates,  32  Ind.  238;  Yancy  v.  Teter,  39  Hunter  v.  Francis,  66  Ind.  460;  Nord 

Ind.  305.  r.  Marty,  56  Ind.  531 :   Bristor  v.  Gal- 

(u)  Kemp  v.  Mitchell,  29  Ind.  163.  vin,  62   Ind.  352;    Berry  v.  Seitz,  15 

(v)  Yancy    v.   Teter,    39    Ind.  305;  Ind.  69;   Vol.  S,  pp.  186,  187. 
20 


306  PROCEEDINGS   AFTER   COMPLAINT   FILED.  [CHAP. 

In  the  cases  cited  in  the  foot-note,  the  facts  stated  have  been  held  to 
entitle  the  parties  to  relief. y 

In  the  following  cases  the  facts  have  been  held  insufficient  to  set 
aside  the  default.2 

It  should  be  remembered,  in  the  examination  of  the  cases  cited,  that 
all  of  the  decisions  prior  to  Phelps  v.  Osgood,  34  Ind.  150,  holding  the 
facts  stated  to  be  insufficient,  were  based  upon  the  original  section  un- 
der which  the  application  of  the  party  was  addressed  to  the  discretion 
of  the  court,  and  the  supreme  court  would  not  interfere  unless  it  ap- 
peared that  there  had  been  a  clear  abuse  of  discretion.  Since  the  case 
of  Phelps  v.  Osgood,  the  question  of  a  party's  right  to  relief  must  be 
decided  as  any  other  question  presented  to  the  supreme  court  where  the 
action  of  the  lower  court  is  subject  to  review. 

463.  How  proof  made  in  applications  to  set  aside  default, 
and  what  may  be  controverted. — The  proceeding  authorized  by 
the  statute  must  be  regarded  as  summary  in  its  nature.  The  ordinary 
modes  of  pleading  are  dispensed  with  by  the  construction  placed  upon 
the  statute  by  the  supreme  court.  The  proof  may  be  made  either  by 
affidavits,  depositions,  or  oral  proof.4 

The  right  of  the  party  in  whose  favor  the  judgment  is  rendered  to 
file  affidavits  is  limited,  however,  to  the  grounds  upon  which  the  relief 
is  sought.  He  can  not  be  permitted  to  controvert  the  allegation  that 
the  defendant  has  a  meritorious  defense.  This  would  be  anticu^ing 
the  matter  to  be  tried  if  the  judgment  should  be  opened  up.bmj 

In  the  case  of  Hill  v.  Crump,  it  was  held  that  counter  affidavits 
would  not  be  permitted  as  to  the  facts  constituting  a  cause  for  setting 
aside  the  default,  but  this  point  is  clearly  settled  the  other  way  by  the 
later  cases. 

(y)  Ratliff  v.  Baldwin,  29  Ind.  16;  giss  v.  Fay,  16  Ind.  429;  Hazelrig  v. 
Harvey  v.  Wilson,  44  Ind.  231;  Hill  Wainwright,  17  Ind.  215;  Hays  v.  The 
v.  Crump,  24  Ind.  291;  Alvord  v.  Bank  of  the  State,  21  Ind.  154;  Coop- 
Gere,  10  Ind.  385;  Frazierr.  Williams,  er  t>.  Johnson,  26  Ind.  247;  Phelps  v. 
18  Ind.  41(3;  Sage  v.  Matheny,  14  Ind.  Osgood,  34  Ind.  150;  Barnes  v.  Smith, 
369;  Cavenaugh  v.  The  Toledo,  etc.,  34  Ind.  516;  Lake  v.  Jones,  49  Ind. 
Tl.  Pv.  Co.,  49  Ind.  149;  Clegg  v.  Fith-  297;  £eigelmueller  v.  Seamer,  63  Ind. 
ian,  32  Ind.  90;  Nord  v.  Marty,  56  488. 

lad.  531;    BrUtor  v.  Galvin,  62  Ind.  (a)  Buck   v.  Havens,    40   Ind.  221; 

332;  Taylor  v.  Watkins,  62  Ind.  511;  Ratliff  v.  Baldwin,  29  Ind.  16. 

Hannah  v.  The  Indiana  Central  U.K.  (b)  Hill    v.   Crump,    24    Ind.   201; 

Co.,  18  Ind.  431.  Buck  v.  Havens,  40  Ind.  221 ;   Lake  r. 

(zt  Carlisle  v.  Wilkinson,   12   Ind.  Jones,  49  Ind.  297;  Bristor  v.  Galvin, 

91;  Frost  v.  Dodge,  15  Ind.  139;  Slur-  62  Ind.  352. 


XUI.]  PROCEEDINGS  AFTER   COMPLAINT  FILED.  307 

464.  Effect  of  setting  aside  default  taken  against  one  of 
several  defendants. — Where  judgment  is  taken  against  several  de- 
fendants one  of  the  parties  may  have  the  default  set  aside  as  to  him, 
leaving  the  judgment  to  stand  against  the  others,  although  the  judg- 
ment is  joint.0 

It  was  claimed  in  the  case  cited,  that  when  the  default  was  set  aside 
as  to  Pattison,  leaving  the  judgment  to  stand  against  the  other  defend- 
ants, no  valid  judgment  could  afterward  be  taken  against  Pattisou 
alone.  It  was  held  otherwise,  the  court  holding  that  he  could  not  thus 
take  advantage  of  the  judgment  being  set  aside  on  his  own  motion. 
It  was  intimated  that  the  better  practice  would  have  been  to  have  held 
the  judgment  subject  to  Pattison's  defense,  and  this  is  the  better  prac- 
tice, else  we  have  a  plain  violation  of  the  well-established  rule  that  two 
judgments  can  not  be  taken  on  a  joint  liability. 

465.  Court   can  not  set  aside  default   on  condition  that 
costs  are  paid. — The  statute,  as  I  have  shown,  makes  it  the  impera- 
tive duty  of  the  court  to  set  aside  the  default  on  the  proper  showing.d 

It  would  seem  to  follow  that  no  conditions  can  be  imposed  upon 
which  relief  shall  be  granted,  but  the  court  is  not  bound  to  grant  the 
relief  without  terms.6 

In  the  case  cited  the  court  say:  "  In  granting  relief  under  section 
99,  the  court  may  impose  such  conditions  as  are  proper.  To  make 
them  proper,  they  must  be  just  and  reasonable.  .  .  .  The  failure 
of  the  appellant  to  be  present  at  the  time  set  for  the  trial  resulted  in  a 
continuance  of  the  cause,  and  it  would  have  been  reasonable  and  proper 
to  have  adjudged  against  the  appellant  all  the  costs  occasioned  by  his 
default.  But  we  do  not  think  it  was  proper  for  the  court  to  require  the 
actual  payment  of  the  costs  within  a  limited  time.  Such  a  condition  was 
unreasonable,  and  in  many  cases  would  operate  oppressively  and  pro- 
duce injustice,  where  the  parties  were  unable  to  pay  such  costs." 

Although  the  court  say,  in  express  terms,  that  the  court  may  impose 
such  conditions  as  are  reasonable,  the  conclusion  reached  is  the  other 
way.  While  the  court  may  grant  relief  upon  reasonable  terms,  as, 
for  example,  the  payment  of  cost,  the  terms  should  not  be  made  a 
condition,  upon  the  performance  of  which  the  default  will  be  set  aside. 
The  relief  should  be  granted  absolutely,  as  the  statute  plainly  requires, 
and  judgment  rendered  against  the  party  for  such  costs  as  the  court 
may  impose  upon  him. 

(c)  Pattison  v.  Norris,  29  Ind.  165.  (e)  Cavenaugh  v.  The  Toledo,  etc., 

(d)  Ante,  \  460.  R.  R.  Co.,  49  Ind.  149. 


308  PROCEEDINGS   AFTER   COMPLAINT    FILED.  [CHAP. 

466.  Section  396  does  not  apply  to  actions  for  divorce.— 
The  section  is  general  in  its  terms  and  would  seem  to  be  broad  enough 
to  cover  all  cases.     But  it  has  been  held  not  to  apply  to  actions  for 
divorced 

The  decisions  are  placed  upon  the  ground  that  the  section  only  ap- 
plies to  ' '  civil  actions,"  and  a  proceeding  for  divorce  is  held  not  to  be 
a  civil  action,  within  the  meaning  of  the  code.8 

467.  The  section  applies  to  plaintiffs. — The  right  to  relief 
under  this  section  is  not  limited  to  defaults  or  to  defendants.     A  judg- 
ment may  be  taken  against  a  defendant  for  want  of  an  answer  or  other 
failure  to  take  necessary  steps  in  the  case,  or  judgment  may  be  taken 
against  a  plaintiff  for  want  of  prosecution  or  other  cause.     In  either 
case,  if  the  judgment  is  taken  through  the  excusable  neglect  of  the 
party,  he  is  entitled  to  relief. h 

i 

468.  Effect  of  setting  aside  default. — The  effect  of  setting 

aside  a  default  is  to  place  the  party  in  the  same  situation  in  which  he 
would  have  been  if  no  default  had  been  taken  against  him,  subject, 
however,  to  any  terms  that  may  have  been  imposed  by  the  court  in 
granting  the  relief.  This  is  not  true  if  the  default  has  been  taken 
without  the  proper  service  of  process.  It  may  well  be  presumed  that 
where  a  default  has  been  taken  the  defendant  has  been  properly  served, 
or  he  would  not  be  asking  to  set  aside  the  default.  But  if  a  default 
has  been  taken  upon  defective  service,  or  without  any  service,  and  the 
defendant  appears  and  has  the  default  set  aside  on  his  own  motion,  he 
can  not  then  question  the  sufficiency  of  the  service.  The  setting  aside 
of  the  default  brings  him  before  the  court  and  dispenses  with  the  ne- 
cessity of  service.  This  rule,  we  have  shown  in  another  place,  can  not 
apply  where  the  defendant  is  a  non-resident  and  an  appearance  has 
once  been  entered  for  him  by  an  unauthorized  attorney.1 

In  such  case,  if  the  appearance  is  entered  by  the  attorney,  without 
authority,  and  default  is  taken  by  reason  of  his  failure  to  answer  or 
take  some  subsequent  step  in  the  case,  the  defendant,  being  a  non-resi- 
dent, may  have  the  default  set  aside  on  the  proper  showing,  and,  if 
admitted  to  defend,  may  contest  the  service. 

(f)  Ewing  v.  Ewing,  24  Ind.  468;        (h)  Cavenaugh  v.  The  Toledo,  etc., 
McJunkin  v.  McJunkin,  3  Ind.  30.  K.  R.  Co.,  49  Ind.  149. 

(g)  Ante,  §  178.  (i)  Ante,  H  227,  228. 


XIV.] 


DEMURRER. 


309 


CHAPTER  XIV. 


DEMURRER.(l) 


SECTION. 

469.  The  statute. 

470.  Must  be  for  some  one  of  the  stat- 

utory causes. 

471.  Form. 

472.  For  one  cause   does    not    reach 

other  defects. 

473.  Neither  general   nor  special   de- 

murrers under  the  code. 

CAUSES   FOR   DEMURRER 

1.  The  court  has  no  jurisdiction  over 

the  person  of  the  defendant  or  the 
subject-matter. 

474.  Jurisdiction  presumed. 

475.  In    inferior    courts,    jurisdiction 

must  affirmatively  appear. 

476.  When  jurisdiction  of  the  person 

may  be  questioned  by  demurrer. 

477.  Section  307  of  the  statute  one  of 

jurisdiction. 

478.  Jurisdiction  of  the  person  waived 

by  failure  to  demur. 

2.  That  the  plaintiff  has  not  legal  ca- 

pacity to  sue. 

479.  Applies  to  legal  disabilities. 

3.  That  there  is  another  action  pending 

between  the  same  parties  for  the 
same  cause. 

480.  Does  not  apply  to  actions  pending 

in  another  state. 

481.  Nor     to     actions     subsequently 

brought. 

4.  That  there  is  a   defect  of  parties 

plaintiff  or  defendant. 

482.  Construction  of  the  clause. 


SECTION. 

483.  What  demurrer  for  defect  of  par- 

ties must  contain. 

5.  That  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause 
of  action. 

484.  Not  waived  by  failure  to  demur. 

485.  Defects  not  reached  by  demurrer 

for  want  of  sufficient  facts. 

486.  Effect  of  pointing  out  particular 

defects. 

6.  Misjoinder  of  causes  of  action. 

487.  Must  be  to  whole  complaint. 

488.  What  is  misjoinder  of  causes  of 

action. 

489.  Objection  must   be  raised  by  de- 

murrer. 

490.  Difference  between  misjoinder  of 

causes  of  action  and  misjoinder 
of  parties. 

WHAT   DEFECTS   DEMURRER  WILL   NOT 
REACH. 

491.  Defects     formerly    reached     by 

special  demurrer. 

492.  Surplusage. 

493.  Uncertainty  or  indefiniteness. 

494.  Duplicity. 

495.  Irrelevant  and  redundant  matter. 

496.  Sham  defense. 

497.  How  pleading  shown  to  be  sham. 

498.  Rule  under  the  revised  code. 

499.  Can  general  denial  be  stricken  out 

as  sham? 

500.  Frivolous  pleading. 

501.  Repugnancy. 

502.  Argumentativeness. 


(1)  For  forms  of  demurrer,  see  Y</1.  3,  pp.  827-331. 


310 


DEMURRER. 


[CHAP. 


503.  That  pleading  is  not  verified 
604.  Misjoinder  of  parties. 

505.  Misnomer. 

506.  Answer  of  set-off  in  tort. 

507.  Statute  of  limitations. 

508.  Amount  of  damages. 

509.  Illegality  of   contract   made   on 

Sunday. 

510.  Defects  in  prayer. 

511.  Part  of  paragraph. 

WHAT   DEFECTS   REACHED   BY   DEMUR- 
RER. 

512.  Departure. 

513.  That  written  instrument  founda- 

tion of  the  action  or  defense  is 
not  made  part  of  the  pleading. 

514.  The  statute  of  frauds. 
615.  Estoppel. 

516.  Variance. 

617.  In  claims  against  estates. 

518.  When    demurrer    equivalent    to 

motion  to  strike  out  or  dismiss. 

WHAT   IS  WAIVED   BY  FAILURE   TO  DE- 
MUR. 

519.  All  defects  appearing  on  face  of 

pleadings. 

520.  Exceptions;    that   the   court   has 

not  jurisdiction  of  the  subject- 
matter,  and  that  complaint  does 
not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  not 
waived. 

521.  Defects    cured    by    verdict    not 

waived. 

WHEN   DEMURRER   REACHES   BACK. 

522.  For  defects  not  cured   by  failure 
to  demur. 

523.  Want   of  jurisdiction,    and   that 

pleading  does  not  state  facts 
sufficient. 

524.  Demurrer  to  reply  reaches  defects 

in  answer  and  complaint. 

525.  Rule  under  the  revised  statute  of 

1881. 

526.  Demurrer  to   plea   in  abatement 

can  not  be  carried  back. 


WHAT    DEMURKER   ADMITS. 

527.  Facts  well  pleaded. 

JOINT,    SEVERAL,    AND     SEPARATE    DE- 
MURREKS. 

528.  When  joint  or  several. 

529.  Separate  demurrers. 

530.  Demurrer    joint    as   to   pleading 

must  be  overruled,  if  either  para- 
graph good. 

531.  Joint  as  to  parties,  must  be  over- 
ruled, if  pleading  is  good  as  to  either. 

HOW   DEFECTIVE   PLEADINGS   CURED. 

532.  By  verdict. 

533.  What  defects  cured  by  verdict. 

534.  By  answer. 

535.  By  statute. 

536.  By  award. 

WHEN    RULING   ON   DEMURRER    HARM- 
LESS. 

537.  Sustained  to  good  paragraph. 

538.  Overruled  to  bad  paragraph. 

WHEN   DEMURRER   WAIVED. 

539.  By  pleading  over. 

540.  Can  not  plead  and  demur  at  same 

time. 

541.  By  going  to  trial. 

542.  Effect  of  adjudicated  cases. 

543.  When   court   presumed   to   have 

passed  upon  demurrer. 

544.  Effect  of  waiver. 

DEMURRER   IN   PARTICULAR   CASES. 

545.  Petition  for  highway. 

546.  Mandate. 

547.  Proceedings  supplementary  to  ex- 

ecution. 

DEMURRER  TO    EVIDENCE. 

548.  Its  form. 

549.  What  demurrer  admits. 

550.  Waives  objection  to  admissibility 

of  evidence. 

551.  Joinder  in  demurrer. 

552.  What  joinder  admits. 


XIV.]  DEMURRER.  311 

469.  The  statute. — "Sec.  339.  The  defendant  may  demur  to  the 
complaint  when  it  appears  upon  the  face  thereof  either  : 

"First.  That  the  court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant or  the  subject  of  the  action.  • 

"Second.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

"TJiird.  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause. 

"Fourth.  That  there  is  a  defect  of  parties  plaintiff  or  defendant. 

"Fifth.  That  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action. 

"Sixth.  That  several  causes  of  action  have  been  improperly  joined, 
and  for  no  other  cause  shall  a  demurrer  be  sustained."* 

470.  Must  be  for  some  one  of  the  statutory  causes. — The 
causes  for  demurrer  being  specifically  stated  in  the  statute,  it  is  held 
that  the  demurrer  must  be  for  one  or  the  other  of  the  statutory  causes, 
or  it  will  be  overruled.     The  statute  expressly  provides  that  "for  no 
other  cause  shall  a  demurrer  be  sustained  "  than  those  named.b 

471.  Form. — It  can  not  be  said  that  any  particular  form  is  neces- 
sary to  constitute  the  demurrer  sufficient.     We  have  already  seen  that 
the  causes  assigned  must  come  within  the  statute ;  and  it  is  the  safer 
practice  in  all  cases  to  use  the  language  of  the  statute  in  stating  the 
ground  of  demurrer,  as  this  will  be  held  sufficient.     It  is  not  necessary, 
however,  that  the  exact  words  of  the  statute  should  be  used.     But 
the  language  must  be  substantially  the  same.c 

It  has  been  held  that  a  demurrer  to  a  complaint,  assigning  for  cause 
that  the  facts  alleged  did  "not  entitle  the  plaintiff  to  the  relief  de- 
manded "  was  insufficient.11 

The  same  has  been  held  where  the  cause  assigned  was  that  the  com- 
plaint "  is  not  sufficient  in  law  to  entitle  the  party  to  the  relief  de- 
manded,"6 and  where  the  cause  assigned  was  that  the  paragraphs  of  a 
complaint  "  are  not  good  and  sufficient  in  law,"f  and  to  an  answer,  that 

(a)  K.  S.  1881,  §  339.  38;   The  City  of  Aurora  v.  Cobb,  21 

(b)  The  Cincinnati,  etc.,  R.  R.  Co.  v.     Ind.  492. 

"Washburn,    25    Ind.   259;    Kemp    v.         (c)  Pace  v.  Openheira,  12  Ind.  533 ; 

Mitchell,  29  Ind.  163;  Porter  v.  Wil-  Blinks  v.  The  State,  48  Ind.  172;  Petty 

son,  35  Ind.  348;  Lane  v.  The  State,  7  v.  The  Board  of  Trustees,  etc.,  70  Ind. 

Ind.  426;  Tenbrook  v.  Brown,  17  Ind.  290;  Stanley  v.  Peeples,  13  Ind.  232. 
410;  Hamilton  v.  The  Newcastle,  etc.,         (d)  The  Cincinnati,  etc.,  R.  R.  Co.  v. 

R.  R.  Co.,  9  Ind.  359;  Hammon  v.  Sex-  Washburn,  25  Ind.  259. 
ton,  69  Ind.  37;    Hicks  v.  Reigle,  32         (e)   Kemp  v.  Mitchell,  29  Ind.  163. 
Ind.  360;   Morrison  v.  Kramer,  58  Ind.         (f  )  Porter  v.  Wilson,  35  Ind.  348. 


312  DEMURRER.  [CHAP. 

the  same  "  as  a  defense  to  plaintiff's  cause  of  action  is  not  sufficient  in 
law."s 

That  a  pleading  does  not  "  state  facts  sufficient  to  bar  the  action," 
or  "state  facts  sufficient  for  a  counterclaim,"  h  or  "  that  the  plaintiff 
has  no  right  to  maintain  this  action," '  are  not  sufficient  grounds  for 
demurrer. 

Demurrer  to  au  answer  because  the  same  is  "  insufficient  in  law  to 
constitute  a  legal  defense  to  the  action, "•>  or  that  "  the  same  is  not 
sufficient  in  law  to  enable  the  defendant  to  sustain  his  said  defense,  or 
to  bar  the  plaintiff's  complaint,"  is  insufficient. k 

A  demurrer  to  several  paragraphs  of  reply,  assigning  that  "  neither 
of  said  paragraphs  constitute  a  good  reply  to  said  answer,"  is  not  suffi- 
cient in  form.1 

But  a  demurrer  assigning  for  cause  "  that  said  paragraph  does  not 
state  facts  sufficient,"  has  been  held  to  comply  substantially  with  the 
statute."1 

An  examination  of  the  authorities  will  show  that  a  substantial  com- 
pliance with  the  statute  is  necessary  in  drawing  a  demurrer,  and  that 
a  very  little  care  in  following  the  language  of  the  statute,  will  avoid 
going  out  of  court  on  a  mere  question  of  form. 

The  rule  that  it  is  sufficient  to  follow  the  language  of  the  statute 
is  not  true  in  every  case.u 

472.  For  one  cause  does  not  reach  other  defects. — It  is 
important  to  determine,  before  demurring,  within  which  of  the  six 
causes  named  in  the  statute  the  defect  in  a  pleading  will  fall.  A  mis- 
take in  this  respect  will  be  fatal,  for  the  reason  that  a  demurrer  for  one 
cause  must  be  overruled  if  that  cause  does  not  exist,  although  the 
pleading  may  be  defective  for  other  reasons.0 

It  is  not  always  easy  to  determine  which  cause  for  a  demurrer 
should  be  assigned,  and  the  decisions  are  not  uniform  on  this  point. 

This  question  will  be  more  fully, considered  in  connection  with  the 
separate  causes  for  demurrer.  As  the  party  demurring  must  determine, 
at  his  peril,  which  of  the  causes  exist,  if  any,  it  is  safer,  when  there  is 
any  doubt,  to  assign  all  of  the  causes  that  are  likely  to  reach  the  defect. 

(g)  Gordon  v.  Swift,  39  Ind.  212.  (m)  Petty  v.  The  Board  of  Trustees, 

(h)  Campbell  v.  Routt,  42  Ind.  410.  etc.,  70  Ind.  290. 

(i)  Morrison  v.  Kramer,  58  Ind.  38.  (n)  Post,  §  483. 

( j)  Lane  v.  The  State,  7  Ind.  426.  (o)  The  State  v.  Stout,  61  Ind.  143  ; 

(k)  Ten  brook  v.  Brown,  17  Ind  410.  Cox  v.  Bird,  65  Ind.  277;   Barnett  v. 

(1)  Vaughn  v.  Ferrall,  57  Ind.  182.  Leonard,  66  Ind.  422;  Leedy  v.  Nash, 

67  Ind.  311. 


XIV.]  DEMURRER.  313 

473.  Neither  general  nor  special  demurrers  underthe  code. 
— At  common  law  demurrers  were  general  or  special.     A  general  de- 
murrer excepted  to  the  sufficiency  of  the  pleading  "in  general  terms, 
without  showing  the  nature  of  the  objection ; "  a  special  demurrer 
added  to  this  a  "  specification  of  the  particular  grounds  of  exception." 
A  general  demurrer  went  to  the  substance,  and  a  special  demurrer  to 
the  form  of  the  pleading. p 

Strictly  speaking  neither  of  these  kinds  of  demurrer  exist  under  the 
code.  It  has  been  expressly  held  that  there  can  be  no  demurrer  to  a 
pleading  for  a  mere  want  of  form,  as  in  case  of  a  special  demurrer  at 
common  law.q 

A  demurrer,  assigning  for  cause  that  the  complaint  does  not  "  state 
facts  sufficient  to  constitute  a  cause  of  action,"  is  sometimes  spoken  of 
as  a  general  demurrer,  but  the  ground  of  demurrer  must  be  stated  here 
as  in  other  cases ;  and  in  this  it  differs  from  the  common-law  general 
demurrer.  The  form  of  the  demurrer  is  entirely  governed  by  statute, 
and  is  essentially  different  from  either  a  general  or  special  demurrer  at 
common  law. 

But  the  code  demurrer  goes  to  the  substance  of  the  pleading,  and  is, 
therefore,  in  legal  effect,  the  same  as  the  common-law  general  demur- 
rer, limited,  however,  to  the  causes  named  in  the  statute. 

CAUSES   FOR   DEMURRER. 

1.    THE   COURT   HAS   NO   JURISDICTION   OVER   THE   PERSON    OF   THE   DE- 
FENDANT   OR   THE    SUBJECT-MATTER. 

474.  Jurisdiction   presumed. — It   is   only  where   the  want  of 
jurisdiction  appears  on  the  face  of  the  complaint  that  a  demurrer 
will  lie.r 

In  actions  in  the  circuit  court,  it  being  a  court  of  general  jurisdic- 
tion, it  is  not  necessary  that  the  complaint  should  show,  affirmatively, 
that  the  court  has  jurisdiction.  If  there  is  nothing  in  the  complaint 
to  show  whether  the  court  has  or  has  not  jurisdiction  the  question  can 
not  be  reached  by  demurrer,  as  the  jurisdiction  will  be  presumed.8 

(p)  Stephen  Pleading,  140,  141.  Wolf  v.  The  State,  11  Ind.  231;  God- 

(q)  Graham  r.  Martin.  64  Ind.  567;  frey  v.  Godfrey,  17  Ind.  6;  Culph  v. 

Igleharfs  PI.  and  Pr.  45,  §4;  Pome-  Phillips,  17  Ind.  209;  The  Indianapo- 

roy's  Hem.,  §  596.  lis,  etc.,  R.  R.  Co.  v.  Solomon,  23  Ind. 

(r)  Reiser  v.  Yandcs,  45  Ind.  174.  534;    Loeb    v.    Mathis,    37    Ind.    306; 

(s)  Brownfield  v.  Weicht,  9  Ind.  Kinnaman  v.  Kinnarnan,  71  Ind.  417. 

394;  Ragan  v.  Haynes,  10  Ind.  348;  Ante,  §  5. 


314  DEMURRER.  [CHAP. 

But  where  the  complaint  shows,  upon  its  face,  that  the  court  has  no 
jurisdiction,  the  question  may  be  raised  by  demurrer.1 
Or  the  action  may  be  dismissed  on  motion.11 

475.  In  inferior  courts  jurisdiction  must  affirmatively  ap- 
pear.— There  is  a  clear  distinction  between  courts  of  general  and 
those  of  limited  jurisdiction,  as  to  the  proper  manner  of  raising  the 
question.     The  rule  that  the  jurisdiction  of  a  superior  court  will  be 
presumed  does  not  apply*to  inferior  courts.     Their  powers  being  lim- 
ited by  statute,  it  must  affirmatively  appear  on  the  face  of  the  com- 
plaint that,  as  to  the  subject-matter,  they  are  acting  within  their  stat- 
utory jurisdiction. v 

Therefore,  in  this  class  of  cases,  where  the  complaint  does  not 
affirmatively  show  that  the  court  has  jurisdiction  of  the  subject-matter, 
the  question  is  presented  by  demurrer. 

476.  When  jurisdiction  of  the  person  may  be  questioned 
by  demurrer. — It  is  very  seldom  that  a  demurrer  can  be  resorted  to 
as  a  means  of  testing  the  jurisdiction  of  the  court  over  the  person  of 
the  defendant,  for  the  reason  that  the  objection  will  rarely  appear  on 
the  face  of  the  complaint.     The  statute  authorizing  a  demurrer  must 
be  held  to  apply  only  to  cases  where  the  court  will  not  have  jurisdic- 
tion even  if  the  defendant  has  been  properly  served  with  process,  and 
not  to  cases  where  the  court  has  failed  to  obtain  jurisdiction  by  reason 
of  the  failure  to  get  service. w 

For  example,  in  an  action  required  by  the  statute  to  be  commenced 
in  the  county  where  the  defendant  resides,  if  the  complaint  shows  upon 
its  face  that  he  resides  in  another  county  the  court  would,  within  the 
meaning  of  the  statute,  have  no  jurisdiction  of  the  person,  and  a  de- 
murrer would  be  the  proper  remedy.1 

If  it  does  not  appear  on  the  face  of  the  complaint,  a  plea  in  abate- 
ment is  the  proper  remedy. y 

If  the  defendant  resided  in  the  county,  but  was  not  served  with 

(t)  Parker  v.  McAlister,  14  Ind.  12;  O.  &  M.  R.  R.  Co.  v.  Shultz,  31  Ind. 

Loeb  v.  Mathis,  37  Ind.  306;  Stanford  150;    The   Board  of  Comm'rs,  etc.,  v. 

v.  Stanford,   42   Ind.  485;    Newell   v.  Markle,  46  Ind.  96;  ante,  §  5. 

Gatling,  7  Ind.  147;  Keiser  v.  Yandes,  (w)   Bliss'  Code  PI.,  §  405. 

45  Ind.  174.  (x)  Nones   v.  The   Hope,  etc.,  Ins, 

(u)  Kinnaman  v.  Kinnaman,  71  Ind.  Co.,  8  Barb.  541 ;  The  State  v.  Ennis- 

417.  74  Ind.  17. 

(v)  Cobb  v.  The  State,  27  Ind.  133;  (y)  Ludwick  v.  Beckamire,  15  Ind. 

McCarty   v.  The   State,  16   Ind.  310;  198;  The  State  v.  Ennis,  74  Ind.  17. 
Justice  v.  The  State,  17  Ind.  56;  The 


XIV.]  DEMURRER.  315 

process,  the  court  would  not  have  obtained  jurisdiction  of  the  person, 
but  the  defendant  being  within  the  jurisdiction,  an  appearance  and  the 
filing  of  a  demurrer  would,  even  if  the  facts  appeared  on  the  face  of 
the  complaint,  be  a  waiver  of  the  want  of  jurisdiction.2 

In  this  class  of  cases  the  question  must  be  reached  by  motion  under 
a  special  appearance,  and  not  by  demurrer.8 

477.  Section  307  of  the  statute  one  of  jurisdiction. — The 
decisions  of  the  supreme  court  as  to  the  effect  of  section  307  of  the 
statute1"  have  not  been  uniform,  some  of  the  cases  holding  that  the  sec- 
tion was  one  fixing  the  venue  only,c  while  other  and  later  cases  have 
held  that  the  provision  fixing  the  place  where  actions  should  be  brought 
limited  the  jurisdiction  of  the  courts  of  the  state.d 

It  follows,  from  these  decisions,  that  the  question  whether  the  action 
is  brought  in  the  proper  county  may,  where  the  facts  appear  on  the 
face  of  the  complaint,  be  raised  by  demurrer.  It  was  also  true,  as 
the  code  then  stood,  that  a  failure  to  raise  the  question  by  demurrer  or 
answer  did  not  waive  the  objection  to  the  jurisdiction,  on  the  ground 
of  the  action  being  commenced  in  the  wrong  county,6  but  the  revised 
statute  changes  the  law  in  this  respect.  It  was  expressly  provided  by 
section  54  of  the  code,  that  the  objection  to  the  jurisdiction  of  the 
court  over  the  subject-matter  should  not  be  waived  by  a  failure  to  de- 
mur or  answer. 

It  resulted  from  this  section  and  section  28,  as  construed  by  the 
supreme  court,  that  the  objection  that  the  action  was  commenced  in 
the  wrong  county  might  be  raised  for  the  first  time  in  the  supreme 
court.  But  by  section  343,  as  revised,  it  is  provided  that  "the  objec- 
tion that  the  action  was  brought  in  the  wrong  county,  if  not  taken  by  answer 
or  demurrer,  shall  be  deemed  to  have  been  waived.* 

478.  Jurisdiction  of  the  person  -waived   by  failure  to   de- 
mur. —  As  has  been  said,  the  question  of  the  jurisdiction  of  the 
person  is  not  likely  to  be  presented  on  the  face  of  the  complaint  so  as 
to  be  reached  by  demurrer,  but  where  it  is  so  presented,  advantage 

(z)  Ante,  §222;  Hadley  v.  Gutridge,  Huff,    19     Ind.    444;     Brownfield    v. 

58  Ind.  302.  Weicht,    9    Ind.    394;     Pritchard    v. 

(a)  Ante,  §  223;    The  Aurora   Ins.  Campbell,  5  Ind.  494;  Parker  v.  Me- 
Co.  v.  Johnson,  46  Ind.  315.  Alister,  14  Ind.  12;  Vail  v.  Jones,  31 

(b)  R.  S.  1881,  §  307.  Ind.  467 ;  Stanford  v.  Stanford,  42  Ind. 

(c)  Indianapolis,  etc.,  R.  R.  Co.   v.  485;  ante,  §  390. 
Solomon,  23  Ind.  534;  ante,  §  390.  (e)  2  R.  S.  1876,  p.  59,  §  54. 

(d)  Loeb  v.    Mathis,   37   Ind.   306;  (f)  R.  S.  1881,  §  343. 
Tho  New   Albany,  etc.,  R.  R.  Co.  v. 


316  DEMURRER.  [CHAP. 

must  be  taken  of  it  by  demurrer,  or  it  will  be  waived.  If  the  objec- 
tion appears  on  the  face  of  the  complaint,  it  can  not  be  reached  by 
answer,  as  it  is  only  where  the  objection  does  not  so  appear  that  such 
answer  is  authorized.8 

Thus  the  right  to  answer  is  cut  off  by  failure  to  demur,  and  a  fail- 
ure to  raise  the  question  either  by  demurrer  or  answer  is  a  waiver  of 
the  objection.11 

2.    THAT  THE   PLAINTIFF   HAS   NOT   LEGAL   CAPACITY  TO   SUE. 

479.  Applies  to  legal  disabilities. — The  right  given  by  statute 
to  demur  for  this  cause,  is  one  rarely  resorted  to  in  practice.  It  has 
been  held  to  apply  to  cases  where  some  legal  disability  exists  on  the 
part  of  the  plaintiif;  such  as,  unsoundness  of  mind  or  infancy,  and 
not  to  a  case  where  the  action  is  brought  in  the  name  of  a  wrong 
party  i1 

The  same  objection  may  be  raised  by  answer  where  it  does  not  ap- 
pear on  the  face  of  the  complaint ; j  but  where  the  disability  is  appar- 
ent on  the  face  of  the  complaint,  it  must  be  presented  by  demurrer,  or 
it  will  be  waived.  It  can  not,  in  such  case,  be  raised  by  answer.k  In 
those  states  where  the  plaintiff  suing  in  a  fiduciary  capacity,  or  as  a 
corporation,  must  show  the  right  to  maintain  the  action  in  such 
capacity,  a  demurrer  will  lie  if  the  right  to  sue  does  not  affirmatively 
appear.1 

But  this,  as  has  been  shown,  is  not  the  law  in  Indiana.111 

The  objection  that  an  executor  or  corporation  has  no  capacity  to  sue 
as  such  must  be  raised  by  special  answer.11 

The  question  may  arise  whether  the  defect  can  be  reached  under  this 
cause  of  demurrer,  where  it  is  apparent,  upon  the  face  of  the  com- 
plaint, that  the  corporation  is  not  properly  organized,  or  that  the  party 
suing  as  such  is  not  an  executor.  If  this  cause  of  demurrer  applies 
solely  to  such  legal  disabilities  as  are  named  in  the  statute,  the  de- 
murrer could  not  be  sustained  on  the  ground  of  want  of  capacity  to  sue. 

(g)  R.  S.  1881,  ?  343;  Newell  v.  Gat-  cultural  "Works,  52  Ind.  296;  Nave  v. 

ling,  7  Ind.  147;  Keiser  v.  Yandes,  45  Hadley,  74  Ind.  K5. 

Ind.  174;  post,  §  563.  (j)  Hollingsworth    v.  The   State,   8 

(b)   Ludwick  v.  Beekamire,  15  Ind.  Ind.  257. 

198.  (k)  Ante,  ?  368;  R.  S.  1881,  §  343. 

(i)  Pomeroy's  Rem.,  §  208;    Debolt  (1)  Bliss'  Code  PL,  §§407,  408 

v.  Carter,  31  Ind.  355 ;  Dale  v.  Thomas,  (m)  Ante,  §  389  et  seq. 

67  Ind.  570;   Rogers  v.  Lafayette  Agri-  (n)  Post,  §  582. 


XIV.]  DEMURRER.  317 

It  is  held  in  other  states  that  a  demurrer  for  the  failure  to  state  facts 
sufficient  would  not  reach  the  defect.0 

But  our  statute,  as  it  is  construed  by  the  supreme  court,  must  alter 
this  rule.  As  it  applies  solely  to  legal  disabilities,  the  fact  that  the 
complaint  shows  affirmatively  that  the  corporation  suing  is  not  legally 
organized  would  not  authorize  a  demurrer  for  want  of  capacity  to  sue.p 
It  is  equally  well  settled  that  such  a  defect  can  not  be  reached  by  a 
demurrer  for  want  of  sufficient  facts,  which,  it  has  been  held,  admits 
the  existence  of  the  corpora tion.q 

It  follows  that,  notwithstanding  it  appears  affirmatively  in  the  com- 
plaint that  the  party  has  no  right  to  maintain  the  action,  it  must  still 
be  presented  by  answer  and  not  by  demurrer.  There  is  a  late  case, 
however,  that  can  not  be  reconciled  with  this  otherwise  uniform  line 
of  decisions,  holding  that  want  of  capacity  applies  to  legal  disabilities 
alone.1" 

The  action  was  brought  by  the  plaintiffs  in  their  firm  name  of  L.  J. 
Dunning  &  Son.  There  was  a  demurrer  to  the  complaint  on  the 
grounds : 

1.  That  the  plaintiffs  had  not  legal  capacity  to  sue. 

2.  The  complaint  did  not  state  facts  sufficient  to  constitute  a  good 
cause  of  action. 

The  supreme  court  say : .  "  We  construe  the  first  ground  of  objection 
raised  by  the  demurrer,  viz. ,  that  the  appellees  '  had  not  legal  capacity 
to  sue'  to  mean,  in  legal  contemplation,  that  they  were  not  authorized 
by  law  to  prosecute  their  action  in  the  manner  and  form  m  which  they 
did  ;  that  is,  their  firm  or  partnership  name  simply." 

After  quoting  authorities  to  the  effect  that  partners  can  not  sue  in 
their  firm  names,  the  court  say  further  :  "  The  rule  thus  laid  down  has 
ever  since,  so  far  as  we  are  advised,  been  recognized  as  the  correct  one 
in  the  class  of  cases  to  which  it  refers.  Our  present  code  of  civil  pro- 
cedure seems  to  have  made  no  change  in  that  rule.  We  think  it  may, 
therefore,  be  safely  assumed  as  the  settled  law  in  our  state  that  an  un- 
incorporated company  can  not  sue  in  the  name  of  their  firm,  but  must 
proceed  in  the  individual  names  of  their  members.  From  the  conclu- 
sions at  which  we  have  arrived,  we  are  constrained  to  decide  that  the 
appellees  had  not  legal  capacity  to  sue  in  the  manner  and  in  the  form  in 
which  tliey  proceeded,  and  that  the  court  erred  in  overruling  the  demur- 

(o)  Bliss'  Code  PL,  \  408,  and  cases  (q)  Wiles  v.  The  Trustees  of  Philippi 

cited.  Church,  63  Ind.  206. 

(p)  Nolte  v.  Libbert,  34  Ind.  163;  (r)  Pollock  v.  Dunning,  54  Ind.  115. 
Kellev  v.  Love.  35  Ind.  106. 


318  DEMURRER.  [CHAP. 

rer  to  the  complaint ;  also  that  the  court  erred  in  overruling  the  motion 
in  arrest  of  judgment." 

This  case,  so  far  as  it  holds  that  the  defect  in  the  complaint  could 
be  reached  by  a  demurrer  for  want  of  capacity  to  sue,  is  in  direct  con- 
flict with  a  long  line  of  authorities,  both  before  and  after  the  opinion 
was  rendered. 

In  a  later  case,  the  court  lays  down  the  same  rule :  "A  demurrer  to 
a  complaint  for  the  second  statutory  cause,  '  that  the  plaintiff  has-  not 
legal  capacity  to  sue/  has  reference  only  to  some  legal  disability  of  the 
plaintiff,  such  as  infancy,  idiocy,  or  coverture,  and  not  to  the  fact  that 
the  complaint  on  its  face  fails  to  show  a  right  of  action  in  the 
plaintiff."8 

It  can  not  be  maintained  that  because  a  party  brings  his  action  by 
a  wrong  name,  or  omits  his  Christian  name  in  his  complaint,  that  he 
has  not  legal  capacity  to  sue.  The  decision  that  the  action  was  not 
properly  brought  is  well  sustained  by  authority,  but  the  ground  upon 
which  it  was  placed  is  clearly  wrong. 

3.    THAT  THERE   IS  ANOTHER    ACTION    PENDING    BETWEEN    THE    SAME 
PARTIES  FOR  THE   SAME   CAUSE. 

480.  Does  not  apply  to  actions  pending  in  another  state. 
— This  cause  for  demurrer  rarely  presents  itself  in  practice.     It  must, 
of  course,  appear  on  the  face  of  the  complaint  to  be  cause  for  demur- 
rer, and  this  very  seldom  occurs. 

The  statute  does  not  limit  the  cause  to  actions  pending  in  this  state, 
but  this  is  the  construction  given  it  by  the  supreme  court.* 

Therefore,  it  is  not  sufficient  cause  for  demurrer  that  the  complaint 
shows  another  action  pending  in  another  state. u 

481.  Nor  to  actions  subsequently  brought. — The  fact  that  an 
action  has  been  subsequently  instituted  between  the  same  parties,  for 
the  same  cause,  is  not  ground  of  demurrer.     The  demurrer  is  the  same 
in  effect  as  a  plea  in  abatement,  and  governed  by  the  same  rules.     It 
is  well  settled  by  authority  that  a  subsequent  action  is  not  sufficient  to 
abate  the  one  pending,  and  the  bringing  of  the  second  action  is  no 
cause  for  demurrer.' 

The  question  whether  the  action  must  be  pending  when  the  demur- 

(s)  Dale  v.  Thomas,  67  Ind.  570.  v.  The  Bank  of  the  State  of  Indiana, 

(t)  De   Armond   v.    Bonn,   12   Ind.  20  Ind.  528. 

607;  Lee  v.  Hefley,  21  Ind.  98;   Busk.         (v)  Sherwood  v.  Hammond,  4   Blkf. 

Prac.  167.  504;   Lee  v.  Hefley,  '21  Ind.  98;   Busk. 

(u)  Bliss'  Code  PI.,  §  410;   Bradley  Prac.  167. 


XIV.]  DEMURRER.  31  £> 

rer  is  filed,  is  not  so  well  settled.  At  common  law  the  rule  was,  that 
it  was  not  necessary  that  a  plea  in  abatement  should  show  that  the  ac- 
tion pleaded  was  still  pending  at  the  time  the  answer  was  filed.  It 
was  sufficient  to  show,  to  abate  the  writ,  that  it  was  pending  at  the 
time  the  writ  was  issued  in  the  present  case,  and  that  the  plaintiff 
could  not  avoid  the  plea  by  dismissing  the  former  action. w 

This  was  the  rule  prior  to  the  enactment  of  the  present  statute.  The 
language  of  the  statute  would  seem  to  relate  to  the  time  the  demurrer 
or  plea  is  filed,  but  the  supreme  court  has  held  that  it  does  not  change 
the  common-law  rule.1 

The  court  say:  "  An  inference  might  be  drawn  from  the  language 
employed  that  it  was  the  intention-of  the  law-makers  to  permit  such  a 
defense  only  in  cases  where  the  suit  was  pending  at  the  time  of  plead- 
ing. But  it  is  by  no  means  clear  from  the  reading  that  such  construc- 
tion would  be  right,  and  as  it  would  be  in  violation  of  the  principles 
of  pleading  which  formerly  maintained  in  that  respect,  we  are  not  in- 
clined to  adopt  such  construction,  believing  that  the  language  employed 
would  have  more  directly  expressed  the  purpose  if  the  intention  had 
existed  to  change  the  rule  in  that  regard." 

It  follows,  from  this  construction  of  the  statute,  that  the  plaintiff 
must  have  had  the  right  to  maintain  his  action  at  the  time  it  was 
brought,  and  if  the  complaint  shows  upon  its  face  that  there  was  then 
another  action  pending  in  this  state  between  the  same  parties  and  for 
the  same  cause,  a  demurrer  will  lie,  and  the  fact  that  the  other  cause 
has  since  been  dismissed  can  not  avoid  the  effect  of  the  demurrer.7  If 
the  cause  was  pending  at  the  time  the  demurrer  or  answer  in  abate- 
ment was  filed,  its  subsequent  dismissal  would  not  avoid  the  demurrer 
or  answer.2 

4.    THAT    THERE    IS    A    DEFECT*  OF    PARTIES    PLAINTIFF    OR    DEFEND- 
ANT. 

482.  Construction  of  the  clause. — This  cause  for  demurrer  has 
given  rise  to  much  difference  of  judicial  opinion,  and  the  decisions  are 
conflicting.  It  has  sometimes  been  a  question  of  much  difficulty  to 
determine  whether  the  demurrer  should,  in  the  given  case,  be  for  a  de- 
fect of  parties  or  for  want  of  sufficient  facts.  The  following  proposi- 
tions may  be  regarded  as  settled  by  the  decided  cases : 

(w)  Chitty's    PI.    487a,  and    note;  (y)  Bliss'  Code  PI.,  §  410. 

Saunders'  PI.  and  Ev.,  2d  Am.  ed.,  p.  (z)  Frogg's  Ex'rs  v.  Long's  Adm'r, 

20;  Lee  ».  Hefley,  21  Ind.  98.  28  Am.  Dec.  69 ;  s.  c.,  3  Dana,  357. 

(x)  Lee  u.  Hefley,  21  Ind.  98. 


320  DEMURRER.  [CHAP. 

First.  A  defect  of  parties  means  too  few  and  not  too  many  parties.' 

Second.  The  defect  of  too  many  plaintiffs  must  be  reached  by  demur- 
rer for  want  of  sufficient  facts. b 

In  some  of  the  states  misjoinder  of  parties  is  made  a  cause  of  de- 
murrer. In  those  states  this  cause  must  be  specifically  set  forth  as  a 
cause  for  demurrer  for  want  of  sufficient  facts,0  but  we  have  no  such 
cause  for  demurrer. 

Third.  Where  there  are  too  many  defendants  the  demurrer  should 
be  for  want  of  sufficient  facts  by  the  defendants  against  whom  no 
cause  of  action  is  stated.*1 

Fourth.  As  a  misjoinder  of  parties  is  not  a  cause  of  demurrer,  defend- 
ants against  whom  a  cause  of  action  is  stated  can  not  demur  on  any 
ground,  because  other  parties  are  improperly  joined  as  defendants.6 

In*  this  class  of  cases,  where  there  are  several  defendants  against 
whom  no  cause  of  action  is  stated,  they  may  join  in  a  demurrer  or  they 
may  demur  separately.  But  the  better  practice  is  to  demur  separately. 

483.  What  demurrer  for  defect  of  parties  must  contain. — 
The  demurrer  for  this  cause  is  in  the  nature  of  a  plea  in  abatement. 
It  is  not  sufficient  to  demur  in  the  language  of  the  statute.  The  de- 
murrer must  not  only  point  out  the  defect  complained  of,  but  the 
names  of  the  parties  that  should  be  joined  must  be  given/ 

Where  the  names  of  the  omitted  parties  appear  on  the  face  of  the 
complaint,  as  well  as  that  they  are  necessary  parties,  their  names  need 
not  be  set  out  in  the  demurrer.8 

(a)  Bennett  v.  Preston,  17  Ind.  291 ;  per  v.  Vanhorn,  15  Ind.  15-3;   Hill  v. 
Eldridgev.  Bell,  12  How.  (N.  Y.)  549;  Marsh,    46   Ind.   218;    Betson .  v.  The 
Draper  v.  Vanhorn,  15  Ind.  155;  Hill  State,  47  Ind.  54;   Buskirk's  Prac.,  p. 
v.  Marsh,   46   Ind.  218;    Berkshire   v.  169. 

Shultz.  25  Ind.  523;    Bliss'  Code  PI.,  (e)  Bennett  v.  Preston,  17  Ind.  291; 

§4H;   Buskirk's  Prac.,  p.  169;  Pome-  Berkshire  v.  Shultz,  25  Ind.  523,  527; 

roy's  Rem.,  §  206;  Hill  v.  Shatter,  73  Hill  v.  Marsh,  46  Ind.  218:  Makepiece 

Ind.  459.  v.  Davis.  27  Ind.  352;  Goff  v.  -May,  38 

(b)  Berkshire  v.  Shultz,  25  Ind.  523;  Ind.  267;  Buskirk's  Prac..  p.  170. 
Davenport   v.    McCole,    28    Ind.    495;  (f)    Fink   v.    Maples,    15    Ind.  297; 
Goodnight  v.  Goar,  30  Ind.  418;   De-  Gaines  v.  Walker,  16  Ind.  361;   Mus- 
bolt  v.  Carter,  31  Ind.  355;  Fatman  v.  selman  v.  Kent,  33  Ind.  452;   Kelley  v. 
Leet,  41  Ind.  133;  Neal  v.  The  State,  Love,  35  Ind.  106;  Vansickle  v.  Krdel- 
49   Ind.  51;    Musselman    v.  Kent,   33  mier,  36  Ind.  262;  Marks  v.  The  In- 
Ind.  452;  Lippard  v.  Edwards,  39  Ind.  dianapolis,  etc,  R.  R.  Co.,  38  Ind.  440; 
165;  Mann  v.  Marsh,  35  Barb.  68.  Nicholson  v.  The  Louisville,  etc..  R.  R. 

(c)  Bliss'  Code  PI.,  ?  411.  Co.,  55  Ind.  504;  Cox  v.  Bird.  65  Ind 

(d)  Bennett  v.  Preston,  17  Ind.  291;  277;   Bliss'  Code   PI.,  §41fJ;   Buskirk's 
Berkshire  v.  Shultz,  25  Ind.  523;  Dra-  Prac.,  p.  167. 

(g)  Allen  v.  Jerauld,  31  Ind  372. 


XIV.]  DEMURRER.  321 

It  must  not  be  understood  that  a  demurrer  for  this  cause  can  be  re- 
sorted to  where  the  defect  does  not  appear  on  the  face  of  the  complaint. 
But  the  fact  that  there  is  a  defect  of  parties  may  appear  without  dis- 
closing the  name  of  the  party  not  joined.  In  such  case  the  demurrer  must, 
as  in  an  answer  in  abatement,  disclose  the  name.  If  the  defect  does 
not  appear  on  the  face  of  the  complaint,  it  must  be  reached  by  answer. 
The  defect  must  be  reached  by  demurrer  for  defect  of  parties,  where  it 
appears  on  the  face  of  the  complaint,  and  can  be  reached  in  no  other 
way.h 

5.    THAT     THE     COMPLAINT     DOES    NOT     STATE    FACTS     SUFFICIENT     TO 
CONSTITUTE  A  CAUSE  OF  ACTION. 

484.  Not  waived  by  failure  to  demur. — A  demurrer  for  this 
cause  is  usually  termed  a  general  demurrer.     The  defect  in  the  plead- 
ing to  which  it  is  addressed  need  not  be  specifically  pointed  out.     It  is 
sufficient  to  use  the  language  of  the  statute.' 

The  language  of  the  statute  is  very  comprehensive.  Its  very  com- 
prehensiveness has  given  rise  to  a  conflict,  in  the  decided  cases,  as  to 
the  construction  it  should  receive.  While  this  is  regarded  as  the  most 
important  cause  fbr  demurrer,  as  it  is  certainly  the  one  most  frequently 
resorted  to  in  practice,  the  failure  to  demur,  under  this  subdivision,  is 
less  serious  than  for  any  other  cause  except  for  want  of  jurisdiction,  as 
the  failure  to  demur  is  not  a  waiver  of  any  objection  that  could  be  thus 
raised  to  the  complainU 

485.  Defects  not  reached  by  demurrer  for  want  of  suffi- 
cient facts. — In  one  sense  this  cause  for  demurrer  would  seem  to 
cover  every  conceivable  objection  that  could  be  urged  to  a  pleading. 
Whatever  the  cause  for  demurrer,  the  defect  must  be  apparent  on  the 
face  of  the  pleading,  and  where  the  pleading  discloses  such  a  defect  as 
would  render  it  bad  in  law  it  does  not,  as  pleaded,  contain  facts  suffi- 
cient to  constitute  a  cause  of  action  or  defense.     But  this  broad  mean- 
ing can  not  be  given  to  this  clause  of  the  statute  without  destroying 
the  effect  of  the  other  causes  for  demurrer. 

The  whole  section  must  be  taken  together;  and,  when  thus  consid- 
ered, it  may  be  laid  down  as  a  safe  rule  that  no  defect  can  be  reaphed 
by  this  cause  for  demurrer  that  falls  within  either  of  the  other  subdi- 
visions of  the  statute.  Thus,  in  an  action  to  recover  real  estate  in  the 
common-pleas  court,  before  that  court  was  abolished,  it  would  appear  that 

(h)  Pomeroy's  Rem.,  §  207.  (j)  Post,  §  520. 

N  (i)  Ante,  §  471. 

x  21 


322  DEMURRER.  [CHAP. 

the  court  had  no  jurisdiction,  and  therefore  the  facts  stated  would  show 
that  the  plaintiff  ought  not  to  recover ;  but  the  want  of  jurisdiction  is 
made  a  special  cause  for  demurrer,  and  the  demurrer  must  be  for  that 
cause.  It  is  important  to  determine,  in  the  first  instance,  whether  the 
defect  falls  within  one  or  the  other  of  the  special  causes  named  in  the 
statute.  If  the  demurrer  is  for  want  of  facts,  when  it  should  be  for 
one  of  the  other  causes,  the  party  demurring  not  only  loses  the  benefit 
of  his  demurrer,  but  waives  his  right  to  object  to  the  pleading  at  any 
later  stage  of  the  case,  except  the  objection  should  be  for  want  of  ju- 
risdiction. For  example,  if  the  demurrer  should  be  for  want  of  suffi- 
cient facts,  when  the  only  objection  is  a  defect  of  parties,  the  defect  is 
not  reached,  and  the  real  objection  to  the  complaint  is  waived  by  a 
% failure  to  demur  for  that  cause.k 

Thus,  admitting  the  fact  that  such  a  defect  exists  as  would  subject 
the  pleading  to  demurrer,  it  is  as  fatal  to  demur  for  the  wrong  cause  as 
it  would  be  if  no  demurrer  was  filed.  What  defects  can  be  reached  by 
demurrer  will  be  considered  farther  on.  It  may  be  safely  said  that  a  de- 
murrer, for  want  of  sufficient  facts,  will  only  lie  where  the  pleading  fails 
to  aver  some  facts  necessary  to  entitle  the  party  to  recover.  The  rule  is 
thus  stated  by  Mr.  Bliss,  in  his  work  on  Code  Pleading :  "  The  demurrer 
upon  this  ground  is  still  commonly  called  a  general  demurrer,  and 
should  be  interposed  to  a  pleading,  or  to  any  of  its  counts  or  state- 
ments, when  it  shows  that  no  legal  wrong  has  been  done,  or  that  the 
law  will  not  redress  it,  or  that  the  party  has  mistaken  his  remedy,  or 
when  there  has  been  an  omission  of  some  material  averment  necessary 
either  to  establish  the  wrong,  or  to  so  connect  the  parties  with  it,  as  to 
entitle  the  plaintiff  to  redress."1 

This  statement  of  the  rule  may  be  regarded  as  open  to  criticism.  It 
could  hardly  be  a  cause  for  demurrer  that  the  plaintiff  has  "  mistaken 
his  remedy."  It  has  been  shown  that  if  the  complaint  states  a  cause 
of  action,  the  plaintiff  is  entitled  to  such  remedy  as  the  facts  will 
warrant,  no  matter  whether  it  is  the  remedy  he  asks  for  or  not. 

To  say  that  the  plaintiff  has  mistaken  his  remedy  is  to  admit  that 
he  is  entitled  to  some  remedy  under  the  facts  pleaded.  If  this  be 
true,  no  cause  for  demurrer  exists.  The  material  difference  between  a 
demurrer  for  this  cause  and  the  others  provided  for  in  the  statute  is 
that  the  demurrer  for  want  of  facts  goes  to  the  substance  of  the  cause 

(k)   R.  S.  1881,  ?  343;  Little  v.  John-  v.  Leonard,  66  Ind.  422;    Wright  v. 

ston,  26  Ini.  170;  Collins  v.  Nave,  9  Jordan,  71  Ind.  1. 

Ind.  209;  Mobley  v.  Slonaker,  48  Ind.  (1)  Bliss'  Code  PI.,  §  413. 

256;    Shore   v.  Taylor,   46   Ind.   345;  (m)  Ante,  §  342. 
Thomas  v.  Wood,  61  Ind.  132;   Barnett 


XIV.]  DEMURRER.  323 

of  action,  while  the  others  are  in  the  nature  of  pleas  in  abatement. 
In  the  former,  the  direct  question  is  presented,  whether,  admitting  that 
the  court  has  jurisdiction  of  the  subject-matter  and  the  parties,  that 
the  necessary  parties  are  all  before  the  court,  and  the  matters  alleged 
are  in  form  well  pleaded,  the  plaintiff  is  entitled  to  recover.  The  other 
causes  of  demurrer  do  not  reach  the  question  of  the  cause  of  action, 
but  say  :  Admitting  a  cause  of  action  to  be  stated,  the  court  has  no 
jurisdiction  to  give  relief,  or  necessary  parties  are  not  joined,  or  the 
plaintiff  has  not  legal  capacity  to  sue,  or  there  is  another  cause  of  action 
pending,  or  several  causes  of  action  are  improperly  joined.  It  will  be 
seen  at  once  that  these  last  causes  do  not  reach  the  substance  of  the 
complaint.  They  are  just  as  applicable  where  a  cause  of  action  is 
stated  as  where  it  is  not,  and  while  a  demurrer  for  any  of  these  causes 
does  not  waive  the  failure  to  state  facts  sufficient,  because  the  statute 
provides  that  such  objection  can  not  be  waived,  they  do  not  raise  or 
present  the  question.  For  the  purposes  of  a  demurrer  for  any  of  the 
other  causes,  it  is  in  effect  admitted  that  a  cause  of  action  is  stated, 
while  for  the  purposes  of  a  demurrer  for  the  want  of  facts,  it  is  admit- 
ted that  none  of  the  other  causes  for  demurrer  exist. 

It  can  not  be  said  that  a  demurrer  for  want  of  sufficient  facts  will  lie 
where  the  facts  alleged  do  not  "  connect  the  parties  with  the  wrong,  so 
as  to  entitle  the  plaintiff  to  redress."  This  would,  undoubtedly,  be 
true  as  to  the  defendants ;  but,  under  the  practice  in  this  state,  it  is 
not  necessary  to  so  connect  the  plaintiff  in  all  cases  by  the  averments 
of  the  complaint.  For  example,  a  party  suing  as  executor  need  not 
connect  himself  with  the  cause  of  action  by  any  averment  in  the  com- 
plaint. This  is  true  also  in  an  action  on  a  promissory  note  by  a  holder, 
who  received  it  without  indorsement.  Without  making  the  payee  a 
party,  he  is  not  so  connected  with  the  cause  of  action  as  to  entitle  him 
to  recover ;  but  the  question  can  not  be  reached  by  demurrer  for  want 
of  sufficient  facts.  It  must  be  by  demurrer,  on  the  ground  of  a  defect 
of  parties."  But  a  demurrer  fur  want  of  facts  reaches  the  objection 
that  the  right  of  action  is  not  in  the  plaintiff — e.  g.,  where  he  sues 
as  guardian — and  the  action  should  be  in  the  name  of  the  ward.(l) 

There  is  one  apparent  exception  to  the  rule  that  a  demurrer  for  want 
of  sufficient  facts  can  not  be  sustained  where  the  complaint  contains  a 
cause  of  action.  It  is  where  several  plaintiffs  sue,  and  the  complaint 
only  discloses  a  cause  of  action  as  to  a  part  of  them.  In  this  class  of 
cases  the  -ule  is  well  settled  that,  unless  the  complaint  contains  facts 
sufficient  to  constitute  a  cause  of  action  in  favor  of  all  of  the  plaintiffs, 
it  is  bad  r.s  to  all,  and  the  defect  can  only  be  reached  by  a  demurrer 
for  want  of  sufficient  facts.0 

(n)  Shane  v.  Lowry,  48  Ind.  205;     "Wilson     v.    Galey,      103     Ind.     257. 

Strong  u.  Downing,  34  Ind.  300.  (o)  Ante,  §  354;  Berkshire  v.  Shultz, 

(1)  Pence  v.  Anghe,  101  Ind.  317;     25  Ind.  523;  Davenport  v.  McCole,  28 


324  DEMURRER.  [CHAP. 

But  this  it  will  be  seen,  by  an  examination  of  the  authorities,  is  placed 
upon  the  ground  that,  as  the  parties  sue  jointly,  they  must  show  a 
cause  of  action  in  all  who  sue,  and  if  the  complaint  fails  to  disclose  a 
cause  of  action  as  to  any  one  of  the  plaintiffs,  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

Although  the  rule  is  now  well  settled  by  authority,  its  correctness 
may  well  be  doubted.  It  is  not  in  harmony  with  the  liberal  provisions 
of  the  code  authorizing  judgment  to  be  rendered  for  the  parties  who 
establish  a  cause  of  action  and  against  others. p 

486.  Effect  of  pointing  out  particular  defects. — Under  the 
fifth  cause  for  demurrer  it  is  sufficient  to  demur,  generally,  in  the  lan- 
guage of  the  statute,  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  without  pointing  out  in  what  respect 
the  complaint  is  defective.     But  it  has  been  held  that,  where  the  de- 
murrer points  out  specifically  the  objection  to  the  pleading,  and  the 
objection  is  not  well  taken  for  that  cause,  the  party  will  be  held  to  the 
causes  specified  and  the  demurrer  overruled,  although  the  complaint 
may  fail  to  state  other  facts  necessary  to  constitute  a  cause  of  action. q 

This  can  only  be  true,  however,  where  the  party  relies  upon  his  de- 
murrer in  the  supreme  court.  As  the  failure  to  demur  does  not  waive 
this  cause,  he  may  still  assign  as  error  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  and  the  cause  must 
be  reversed,  notwithstanding  the  demurrer  does  not  reach  the  defect. 

6.    MISJOINDER   OF  CAUSES  OF   ACTION. 

487.  Must  be  to  the  whole  complaint. — A  demurrer  for  this 
cause  reaches  the  whole  complaint,  and  can  not  be  applied  to  separate 
paragraphs/ 

488.  "What  is  misjoinder  of  causes  of  action. — This  cause 
for    demurrer    must    be    distinguished    from    duplicity.      The    im- 
proper joinder  of  two  causes  of  action,  in  the  same  paragraph,  that 
might  properly  be  joined  in  separate  paragraphs,  is  not  cause  for 
demurrer.8 

The  statute*  applies  to  the  joinder,  either  in  the  same  or  different 

Ind.  495;  Goodnight  v.  GOAT,  30  Ind.  (p)  K.  S.  1881,  §  568;  ante,  §  101,102. 

418;    Debolt  v.  Carter,    31    Ind.  355;  (q)  Sluss  v.  Shrewsberry,  18  Ind.  79. 

Lipperdi?.  Edwards,  39  Ind.  165;  Neal  (r)  Fletcher  v.  Piatt,    7   Blkf.  522; 

v.  The  State,  49  Ind.  51;    Pomeroy's  Bougher  v.  Scoby,  16  Ind.  151. 

Rem.,  §  213.  (s)  Post,  §  494. 


XIV.]  DEMURRER.  325 

paragraphs  of  causes  of  action  belonging  to  different  classes,  in  viola- 
tion of  section  278  of  the  statute.' 

489.  Objection  must  be  raised  by  demurrer. — There  is  but 
one  mode  of  raising  the  question  of  misjoinder  of  causes  of  action. 
It  can  not  be  done  by  answer.     As  to  other  causes  of  demurrer,  it  is 
provided  by  statute  that  where  the  objection  does  not  appear  on  the 
face  of  the  complaint  it  may  be  taken  by  answer ;  but  the  statute  ex- 
pressly excepts  the  misjoinder  of  causes  of  action."    Therefore,  the  ob- 
jection must  be  taken  by  demurrer,  or  it  is  waived.' 

• 

490.  Difference  between   misjoinder  of  causes  of  action 
and  misjoinder  of  parties. — The  difference  between  the  misjoinder 
of  causes  of  action  and  misjoinder  of  parties  is  not  always  kept  in 
mind.     The  importance  of  distinguishing  them  is  apparent,  as  one  is 
cause  for  demurrer  and  the  other  is  not.     Both  defects  may  exist  in 
the  same  pleading.     Two  or  more  causes  of  action,  belonging  to  differ- 
ent classes,  may  be  stated  against  all  of  the  defendants,  which  would 
be  a  misjoinder  of  causes.     There  may  be  two  causes,  belonging  to  dif- 
ferent classes :  one  cause  against  part  of  the  defendants,  and  another 
against  the  others.     This  would  present  the  two  defects,  misjoinder  of 
causes  and  misjoinder  of  parties.     Again,  there  may  be  parties  joined, 
against  whom  no  cause  of  action  is  shown.     This  would  be  simply  a 
misjoinder  of  parties. w 

It  has  been  held  that  where  the  complaint  discloses  two  causes  of 
action,  growing  out  of  this  same  injury,  one  in  favor  of  the  plain  tin* 
individually  and  the  other  as  an  administrator,  there  is  a  misjoinder 
of  causes  of  action,  although  both  causes  of  action  are  against  the  de- 
fendants sued.1 


WHAT  DEFECTS   DEMURRER   WILL  NOT   REACH. 

491.  Defects  formerly  reached  by  special  demurrer. — We 
have  seen  that  we  have  no  special  demurrer  in  our  practice. y 

Defects  not  included  in  the  six  causes  laid  down  in  the  statute,  and 
that  would,  under  the  common  law,  have  been  reached  by  special  de- 

(t)   Buskirk's  Prac.,  p.  169;  Lane  v.  (v)  Burrows  v.  Holderman,  31  Ind. 

The  State,  27  Ind.  108;  Fritz  v.  Fritz,  412;  Buskirk's  Prac.,  p.  170. 

23  Ind.  388;    Makepiece  v.  Davis,  27  (w)  Goff  v.  May,  38  Ind.  267. 

Ind.  352;   Burrows  v.  Holderman,  31  (x)  The  Cincinnati,  etc.,  R.  R.  Co.  v. 

Ind.  412 ;    Rutherford    v.   Moore,   24  Chester,  57  Ind.  297. 

Ind.  311.  (v)  Ante,  ?  473. 

[u]  K.  S.  1881,  §  313. 


326  DEMURRER.  [CHAP. 

murrer,  are  not  grounds  of  demurrer  under  the  statute,  but  must  be 
the  subject  of  a  motion.1 

492.  Surplusage. — Surplusage  falls  within  the  rule,  and  can  not 
be  reached  by  demurrer.8 

What  constitutes  surplusage  has  been  considered  in  another  place.b 
The  practice  of  resorting  to  motions  to  strike  out  surplusage  and  re- 
dundant matter  has  been  carried  to  such  an  extent  in  this  state  as  to  have 
become  a  positive  evil,  that  results  in  much  delay,  thereby  increasing 
the  labors  of  the  courts  and  attorneys.  As  a  rule,  nothing  is  gained 
by  such  a  motion  but  delay*  If  the  matter  is  mere  surplusage,  it  adds 
nothing  to  the  legal  effect  of  the  pleading.  It  is  very  rarely  necessary 
or  even  advisable  to  move  to  strike  out  matter  that  is  mere  surplusage.0 

493.  Uncertainty  or  indefiniteness. — Uncertainty  in  a  plead- 
ing1 differs  materially  from  surplusage  in  its  effect.     The  one  adds  un- 
necessary matter  to  a  pleading  that  is  good  without  it.     Uncertainty 
is  the  absence  of  matter  necessary  to  show  clearly  the  cause  of  action. 
The  uncertainty  may  be  so  great  that  the  court  can  not  determine 
what  is  the  cause  of  action,  or  that  one  is  stated,  in  which  case  a  de- 
murrer for  want  of  sufficient  facts  is  the  proper  remedy.*1 

But  where  a  cause  of  action  is  stated,  an  objection  that  the  pleading 
is  uncertain  or  indefinite  must  be  reached  by  a  motion  to  require  the 
pleader  to  make  it  more  specific.6 

(z)  Locke  v.  The   Merchants'    Na-  nati,  etc.,  R.  R.  Co.  v.  Chester,  57  Ind. 

tional    Bank,  66   Ind.   353;    Wiles   v.  297;  The  City  of  Evansville  v.  Thayer, 

Lambert,  66  Ind.  494.  59  Ind.  324 ;  Reynolds  v.  The  State,  61 

(a)  The  City  of  Evansville  v.  Thay-  Ind.  392;  Boyce  v.  Brad}-,  61  Ind.  432; 
er,  59  Ind.  324;   King  v.  The  Enter-  Inglis  v.  The  State,  61  Ind.  212;  Sib- 
prise  Ins.  Co.,  45  Ind.  43.  bitt  v.  Stryker,  62  Ind.  41 ;  Hershman 

(b)  Ante,  §  372.  v.  Hershman,  63  Ind.  451 ;  The  City  of 

(c)  Owen  v.  Phillips,  73  Ind.  284.  Goshen  v.  Kern,  63  Ind.  468;  Fly  v. 

(d)  R.  S.  1881,  §  376;    Snowden   v.  Brooks,  64  Ind.  50;  Hampson  v.  Fall, 
"Wilas,  19  Ind.  10;  Lewis  v.  Edwards,  64  Ind.  382;  Jameson  v.  The  Board  of 
44  Ind.  333.  Comm'rs  of  Bartholomew  County,  64 

(e)  R.  S.  1881,   §  376;    Snowden   v.  Ind.  524;  Proctor  v.  Cole,  66  Ind  576; 
Wilas,  19  Ind.  10 ;  Fultz  v.  Wycoff,  25  Schoonover  v.  Reed,  66  Ind.  598;  Dean 
Ind.  321;  Hazzard  v.  Ueacock,  39  Ind.  v.  Miller,  66   Ind.  440;    The  Marion, 
172;  The  Ohio,  etc.,  R.  R.  Co.  v.  Me-  etc.,  Gravel  Road  Co.  v.  Kessinger,  66 
Clure,  47  Ind.  317;  Goodwin  v.  Walls,  Ind.  549;    Earle  v.  Peterson,  67  Ind. 
52   Ind.  268;    Brown  v.  The   College  503;  Dale  v.  Thomas,  67  Ind.  570;  Da- 
Corner,  etc.,  Gravel  Road  Co.,  56  Ind.  vis  v.  The  State,  68  Ind   104;  Terrell 
110;   Holcraft  v.  Mellott,  57  Ind.  539;  v.  The   State,  68  Ind.  155;    Hyatt   v. 
The  Brookville,  etc.,  Turnpike  Co.  v.  Mattingly,  68  Ind.  271 ;  Gabe  v.  Mc- 
Pumphrey,  59  Ind.  78;   The   Cincin-  Ginnis,  68  Ind.  538;  Milroy  v.  Quinn, 


XIV.]  DEMURRER.  327 

• 

The  numerous  authorities  cited  would  seem  to  be  sufficient  to  settle 
the  question.  But  the  difficulty  has  not  been  to  determine  what  the 
rule  is  so  much  as  to  determine  what  degree  of  uncertainty  is  sufficient 
to  render  the  pleading  bad  on  demurrer.  For  this  reason  the  authori- 
ties have  been  gathered  together  in  the  foot-note,  so  that  the  inquiring 
members  of  the  profession  may  determine,  from  illustration  or  exam- 
ple, what  can  not  be  the  subject  of  any  definite  rule.  If  a  cause  of 
action  is  stated  a  demurrer  will  not  reach  the  defect,  no  matter  how 
uncertain  or  indefinite  the  allegations  may  be.  If  a  cause  of  action  is 
not  stated,  a  demurrer  is  the  proper  remedy.  The  rule  can  not  be 
more  definitely  stated.  +. 

494.  Duplicity. — The  statute  requires  that,  where  several  causes 
of  action  are  contained  in  the  same  complaint,  they  shall  be  set  out  in 
separate  paragraphs  and  numbered/ 

The  violation  of  this  provision  is  a  very  common  vice  in  pleading, 
but  it  is  not  one  that  can  be  reached  by  demurrer.  The  proper  remedy 
is  by  a  motion  to  require  the  plaintiff  to  separate  and  number  his  sev- 
eral causes  of  action.  The  rule  applies  equally  where  several  defenses 
are  set  up  in  the  same  paragraph  of  answer  or  reply. % 

Some  of  the  authorities  hold  that  the  proper  remedy  for  duplicity  is 
a  motion  to  strike  out.  But  duplicity  can  only  exist  where  there  are 
two  causes  of  action  stated. b  Neither  can  be  regarded  as  surplusage 
or  irrelevant  matter.  The  only  violation  of  the  rules  of  pleading  is  in 
joining  the  two  causes  of  action  or  defenses  in  the  same  paragraph. 
The  proper  remedy  is  to  separate  and  number  the  causes  of  action,  as 
the  statute  requires.  This  should  be  done  by  a  motion  to  require  that 
they  be  separated  and  numbered,  and  not  by  motion  to  strike  out.  If 
a  counterclaim  is  joined  with  an  answer,  the  proper  remedy  is  to  move 
to  strike  out.' 

495.  Irrelevant  and  redundant  matter. — The  objection  of  ir- 

69Ind.  406;  Lee  v.  Davis,  70  Ind.  464;  (g)  The   State  t>.  Newlin,    69   Ind. 

Walterhouse  v.  Garrard,  70  Ind.  400;  108;    Johnson   v.  The  Crawfordsville, 

The  Pittsburgh,  etc.,  R.  R.  Co.  v.  Hunt,  etc.,  R.  R.  Co.,  11  Ind.  280;  Booher  v. 

71  Ind.  229;    Bliss'    Code   PL,  §  425;  Goldsborough,   44  Ind.  490;  Rielay  v. 

Buskirk's  Prac.  185;  Shappendocia  v.  Whitcber,    18   Ind.   458;    Denman   v. 

Spencer,  73  Ind.  128;  Knox  v.  Wible,  McMahin,  37  Ind.  241. 

73  Ind.  233;  The  O.  &  M.  R.  R.  Co.  v.  (b)  Booher  v.  Goldsborough,  44  Ind. 

Collarn,   73   Ind.   261;    The    City   of  490;    Thompson   v.  Oskamp,   19   Ind. 

Huntington  v.  Mendenhall,  73  Ind  460.  399;    Swinney  v.  Nave,  22  Ind.  178; 

(f)  R.  S.  1881,  §  338.  ante,  §  375. 

(i)  Bliss'  Code  PL,  §  424. 


328  DEMURRER.  [CHAP. 

relevancy  or  redundancy  may  apply  to  a  part  or  all  of  a  paragraph, 
and  occurs  most  frequently  in  the  answer  or  reply.  Where  the  irrele- 
vant or  redundant  matter  is  but  a  part  of  a  paragraph,  and  a  cause  of 
action  is  stated,  the  defect  must  be  reached  by  a  motion  to  strike  out. 
If  the  irrelevant  matter  consists  of  aii  entire  paragraph,  the  remedy 
may  be  by  demurrer  or  motion.  In  this  class  of  cases  the  practice  of 
moving  to  strike  out  a  paragraph  is  quite  common.  It  is  a  practice 
that  should  not  be  encouraged.  It  frequently  occurs  that  a  paragraph 
of  pleading  is  bad  on  demurrer  that  will  withstand  a  motion  to  strike 
out  on  the  ground  of  irrelevancy. •> 

In  the  case  of  Struver  v.  The  Ocean  Insurance  Company,  decided 
under  the  New  Yorls»code,  which  is  the  same  in  effect  as  ours,  the  court 
say  :  "A  sham  answer  is  one  that  is  false  in  fact ;  a  pleading  is  irrele- 
vant which  has  no  substantial  relation  to  the  controversy  between  the 
parties  to  the  action ;  and  a  frivolous  answer  presents  no  defense  to  the 
action.  An  answer,  however,  that  is  so  framed  that  it  does  not  set  up 
a  valid  defense,  but  which  states  facts  that  may,  by  being  properly 
averred,  constitute  a  defense,  will  not  be  struck  out  as  sham,  irrele- 
vant or  frivolous,  but  it  may  be  demurred  to." 

Our  own  supreme  court  quotes  the  language  of  the  Xew  York  case, 
with  approval  in  Clark  v.  The  Jeffersonville,  etc.,  R.  R.  Co.,  and  say: 
"  In  our  opinion,  the  answer  under  examination  can  not  be  regarded 
either  as  sham,  irrelevant  or  frivolous.  There  is  nothing  showing  that 
it  is  false  in  fact.  It  certainly  has  a  substantial  relation  to  the  con- 
troversy between  the  parties  to  the  action.  Nor  can  we  say  that  it 
presents  no  defense  to  the  action.  It  may  not  be  so  framed  as  to  pre- 
sent a  valid  defense,  but  it  does  state  facts  which  tend  to  show  that 
they  would  amount  to  a  valid  defense  if  properly  averred.  When  a 
demurrer  is  sustained  to  a  pleading  the  party  has  a  right  to  amend,  but 
when  a  pleading  is  stricken  out  it  can  not  be  amended,  for  it  is  out  of 
the  record.  The  party,  then,  must  either  reserve  the  question  by  a  bill 
of  exceptions  and  seek  relief  in  this  court,  or  obtain  the  leave  of  the 
court  to  file  another  pleading.  For  this  reason  motions  to  strike  out 
are  not  to  be  encouraged,  unless  it  is  manifest  to  the  court  that  it  would 
be  to  the  prejudice  of  the  party  that  has  to  answer  or  reply  to  suffer 
the  objectionable  matter  to  remain." 

In  the  case  of  Port  v.  Williams,  the  court  say  :  "A  motion  to  strike 
out  does  not  perform  the  office  of  a  demurrer,  either  under  the  old  or 
new  practice. 

"Whether  it  was  a  sufficient  defense  to  bar  the  action  was  wholly  im- 

(j)  Port  v.  Williams,  6  Ind.  219;  Co.,  44  Ind.  248,  262;  Struver  v.  The 
Clark  v.  The  Jeffersonville,  etc.,  R.  II.  Ocean  Ins.  Co.,  9  Abbott  Pr.  23. 


XIV.]  DEMURRER.  329 

material.  It  was  at  least  such  pertinent  matter  as  the  court  ought  not 
to  strike  out  on  motion.  It  was  not  so  irrelevant  as  to  warrant  that ;  it 
was  not  a  sham  defense.  We  are,  therefore,  of  the  opinion  that  the 
court  erred  in  sustaining  the  motion  to  strike  out."k 

It  must  be  clear,  from  the  authorities  cited,  that  where  a  paragraph 
is  so  far  irrelevant  as  to  be  subject  to  a  motion  to  strike  out  on  that 
ground,  it  will  be  equally  subject  to  demurrer  for  want  of  sufficient 
.'acts.  And  a  demurrer  will  be  sustained  in  some  cases  where  the  mo- 
tion must  be  overruled.  Therefore,  the  correct  as  well  as  the  safe 
practice  is  to  demur. 

496.  Sham  defense. — A  sham  defense  differs  materially  from  ir- 
relevant matter.     Irrelevant  matter  may  be  true  in  fact,  but  it  has  no 
substantial  relation  to  the  controversy  between  the  parties.     A  sham 
defense  is  one  that  is  "good  in  form  but  lalse  in  fact."1 

An  answer  containing  a  sham  defense  is  not  subject  to  demurrer. 
The  only  objection  to  it  must  be  that  it  is  false,  and  a  demurrer  would, 
for  the  purposes  of^the  demurrer,  admit  the  facts  alleged  to  be  true. 
The  only  remedy  is  by  a  motion  to  strike  out.m 

497.  How  pleading  shown  to  be  sham. — The  question  as  to 
the  proper  manner  of  showing  a  pleading  to  be  sham  has  been  one  of 
much  difficulty.     It  was  held  in  an  early  case,  before  the  enactment 
of  the  code  of  1852,  that  where  a  plea  appeared,  from  its  face  and  the 
plaintiff's  affidavit,  to  be  false,  and  to  have  been  filed  merely  for  delay, 
it  might  be  rejected  on  motion."     But  so  far  as  this  case  held  that  the 
plaintiffs  affidavit  could  be  taken  into  account  in  determining  whether 
an  answer  was  sham  or  not,  it  was  overruled  in  a  later  case,  though 
not  referred  to  in  the  opinion.0 

It   was  also  held  that  an  answer  might  be  stricken  out  as  sham 

where  the  defendant,  in  answer  to  interrogatories,  admitted  its  falsity. p 

But  this  case  has  been  overruled  by  later  cases,  holding  that  the 

(k)  Stewart   o.  Miller,  6   How.  Pr.  (m)  R.   S.    1881,   \   382;    Smith    v. 

312;  Kurtz  v.  -McGuire,  5  Duer,  660;  Webb,  5  lilkf.  287;  Walpole  v.  Cooper, 

In<,'orsoll  v.  Ingersoll,  1  Code  R.  102;  7  Blkf.  100;  Beeson  v.  McConnaha,  12 

.vverill  v.Taylor,  5  How.  Pr.  476;  Al-  Ind.  420;  Buskirk's  Prac.  189;    Bliss' 

lYed  v.  Watkins,  Code  R.  (N.  S.)  343;  Code  PL,  §  422. 

Maloney  v.  Downr,  15  How.  Pr.  261.  (n)  Smith  v.  Webb.  5  Blkf.  287. 

(1)  Struver  v.  The  Ocean  Ins.  Co.,  9  (o)    Walpole  r.  Cooper,  7  Blkf.  100; 

Abbott  Pr.  23;  Clark  v.  The  Jefferson-  Brown  v.  Lewis,  10  Ind.  232. 

ville,  etc.,  R.  R.  Co.,  44  Ind.  248;  Bliss"  (p)  Beeson  v.  McConnaha,  12  Tnd. 

Code  PI.,  §  242;  Green  biuim  r.  Turrill,  420. 
57  Cal.  285. 


330  DEMURRER.  [CHAP. 

answers  to  interrogatories  can  not  be  resorted  to  for  the  purpose  of  de- 
termining whether  an  answer  is  true  or  false. q 

Mr.  Buskirk,  in  his  work  on  Practice,  after  a  citation  of  the  authori- 
ties, says:  "  It  results,  from  what  has  been  said,  that  in  this  state  an 
answer  can  only  be  rejected  as  sham  where  it  plainly  appears,  upon  its 
face,  to  be  false  in  fact,  and  intended  merely  for  delay." r  This  was 
very  clearly  the  result  of  the  later  decisions  prior  to  the  revision  of  the 
code,  but  the  rule  has  since  been  materially  changed  by  statute. 

498.  Rule  under  the  Revised   Code. — "An   answer  or  other 
pleading  shall  be  rejected  as  sham,  either  when  it  plainly  appears,  upon 
the  face  thereof,  to  be  false  in  fact,  and  intended  merely  for  delay,  or 
when  shown  to  be  so  by  the  answers  of  the  party  to  special  written  in- 
terrogatories propounded  to  him.  to  ascertain  whether  the  pleading  is 
false."8    The  code  thus  adopts  the  rule  as  laid  down  in  Beesou  v. 
McConnaha,  12  Ind.  420;  and,  as  the  statute  now  stands,  interroga- 
tories may  be  submitted,  by  the  opposite  party,  for  the  purpose  of  lay- 
ing the  foundation  for  a  motion  to  strike  out  a  pleading  as  sham  ;  and 
if  the  answers  show  the  pleadings  to  be  false  in  fact,  the  motion  should 
be  sustained. (1) 

The  court  may  also  strike  out  the  pleading  where  it  plainly  appears, 
on  its  face,  to  be  false  in  fact. 

499.  Can  general  denial  be  stricken  out  as  sham. — The 
question  whether,  in  any  case,  the  general  denial  can  be  stricken  out 
as  sham  is  one  not  free  from  doubt.     It  has  been  held,  in  New  York, 
that  it  can  not.'     And  Mr.  Buskirk  lays  down  the  same  rule  in  his 
work  on  Practice.11 

This  must  necessarily  have  been  the  case  prior  to  the  revised  code, 
as  no  pleading  could  be  stricken  out  unless  it  appeared,  on  its  face,  to 
be  false.  This  could  not  appear  on  the  face  of  a  general  denial. 
Therefore  it  could  not  be  stricken  out  as  sham,  for  the  reason  that 
there  was  no  means  of  showing  its  falsity.  But,  under  the  present 
statute,  if  the  answers  to  interrogatories  should  show  that  the  party 
has  no  defense,  his  denial  would  clearly  be  a  sham  pleading,  filed  with 
no  other  object  than  to  procure  delay.  In  such  case  there  could  be  no 
good  reason  why  the  general  denial  should  not  be  stricken  out  the  same 
as  any  other  false  pleading.  This  must  be  left,  however,  to  be  deter- 

(q)  Boggess  v.  Davis,   34   Ind.  82;         (s)  K.  S.  1881,  §  382. 
Raleigh    v.    Tossettel,    36    Ind.   295;         (t)   Wayland    v.   Tyson,   45    N.   Y. 
Mooney  v.  Musser,  34  Ind.  373;  Nel-    281;  Thompson  r.  The  Erie  R.  R.  Co., 
son  v.  Cain,  42  Ind.  563.  45  N.  Y.  468;  Pom.  Rem.,  §  685. 

(r)  Buskirk's  Prac.,  p.  191.  (u)  Buskirk's  Prac.,  p.  190. 

(1)  Lowe  v.  Thompson,  86  Ind.  503;  Moyer  v.  Brand,  102  Ind.  301. 


XIV.]  DEMURRER.  331 

mined  by  the  construction  that  may  be  placed  upon  the  section  of  the 
revised  code.T 

500.  Frivolous  pleading. — This  objection  to  a  pleading  applied, 
under  the  code  of  1852,  to  demurrers  and  motions.     It  was  provided 
that  all  frivolous  demurrers  and  motions  should  be  overruled. w 

But  in  the  revision  of  section  77  the  provision  in  reference  to  demur- 
rers and  motions  is  omitted. x 

Therefore  this  objection  can  no  longer  be  made  to  either  a  demurrer 
or  motion  under  the  statute. 

A  frivolous  answer  is  said  to  be  one  which,  "  assuming  its  contents 
to  be  true,  presents  no  defense  to  the  action."  y 

Such  an  answer  is  subject  to  demurrer  for  want  of  sufficient  facts, 
and  whether  it  is  called  frivolous  or  not  is  immaterial  as  a  question  of 
practice. 

501.  Repugnancy. — Repugnancy  is  not  a  cause  for  demurrer,  but 
must  be  reached  by  motion  to  strike  out.z 

502.  Argumentativeness. — Argumentativeness  is  merely  a  de- 
fect of  form,  and  not  cause  for  demurrer.     It  may  be  reached  by  a 
motion  to  strike  out,  but  as  the  ruling  of  the  court  on  the  motion  does 
not  affect  the  substantial  rights  of  the  parties,  the  question  will  not  be 
considered  in  the  supreme  court.8 

503.  That  pleading  is  not  verified. — The  code  requires  that  the 
pleadings  in  certain  cases  shall  be  verified  by  the  affidavit  of  the  party 
or  some  one  in  his  behalf. 

The  failure  to  verify  the  pleading  in  such  a  case,  although  expressly 
required  by  statute,  does  not  render  it  bad  on  demurrer.  The  question 
must  be  raised  by  motion  to  reject  the  pleading,  on  the  ground  that  it 
is  not  verified. b 

(v)  Mooney  v.  Musser,  34  Ind.  373.  (b)  Hagar   v.   Mounts,   3   Blkf.  57; 

(w)  2  R.  S.  1876,  p.  72,  g  77;  Bus-  Hagar  v.  Mounts,  3  Blkf.  261;  McCor- 

kirk's  Prac.,  p.  188.  mack  v.  Maxwell,  4  Blkf.  168;  Dawson 

(x)  R.  S.  1881,  §  382.  v.  Vaughan,   42  Ind.  395;  Pudney  v. 

(y)  Clark  v.  The  Jeffersonville,  etc.,  Burkhart,  62  Ind.  179;  Turner  v.  Cook, 

R.  R.  Co.,  44  Ind.  248,  and  cases  cited.  36  Ind.  129;  The  Tell  City  Furniture 

(z)  Forst  v.    Elston,    13   Ind.   482;  Co.  v.  Nees,  63  Ind.  245;  Toledo  Agri- 

Buskirk's  Prac.,  p.  185.  cultural  Works  v.  Work,  70  Ind.  253; 

(a)  R.  S.  1881,  §  398;  Judah  v.  The  Buchanan  v.  The  Logansport,  etc.,  R. 

Trustees  of  Vincennes  University.  23  W.  Co.,  71  Ind.  265. 
Ind.  272;   Bliss'  Code  PI.,  §§  333,  425 ; 
Pomeroy's  Rem.,  §?  625,  626,  627. 


332  DEMURRER.  [CHAP. 

504.  Misjoinder  of  parties. — There  is  a  material  difference  be- 
tween the  misjoinder  of  parties  and  a  defect  of  parties.0    The  latter  is 
where  a  necessary  party  is  omitted.     This  is  made  a  cause  of  demurrer 
and  has  been  considered.*1 

The  former  is  where  a  part  of  the  defendants  are  neither  necessary 
nor  proper  parties  to  the  action.  This  is  a  defect  that  can  not  be 
reached  by  demurrer  by  those  who  are  properly  made  parties.6 

It  has  been  shown  that  the  joinder  of  too  many  plaintiffs  is  reached 
by  demurrer  for  want  of  sufficient  facts/ 

505.  Misnomer. — The  proper  practice  in  case  of  a  misnomer  can 
not  be  regarded  as  settled  in  Indiana,  nor  perhaps  in  any  of  the  states.6 

At  common  law,  the  remedy  was  by  plea  in  abatement;  but  by 
statute,  in  England,  the  plea  for  this  cause  was  abolished,  and  it  was 
provided  that  the  defendant  might  cause  the  declaration  to  be  amended 
at  the  cost  of  the  plaintiff,  by  inserting  the  right  name.h 

There  is  no  provision  in  our  statute  that  changes  the  common-law 
mode  of  taking  advantage  of  a  misnomer,  and  the  decided  cases  do  not 
establish  any  rule  on  the  subject.  So  far  as  it  has  been  decided  by  the 
supreme  court,  it  seems  to  have  been  taken  for  granted  that  the  ques- 
tion is  properly  raised  by  plea  in  abatement ;  and  this,  it  is  believed, 
is  the  proper  practice.1 

In  the  case  of  Pedens  v.  King,  the  court  say:  "It  is  claimed  that 
the  suit  ought  to  have  been  in  the  Christian  as  well  as  the  surnames  of 
the  appellees.  There  is  nothing  in  the  objection.  If  it  was  true  that 
the  Christian  names  of  the  plaintiffs  were  omitted  in  the  statement  of 
the  claim,  it  would  be  only  matter  in  abatement." 

In  Sinton  v.  The  Steamboat  R.  R.  Roberts,  it  is  said:  "  It  is  ob- 
jected that  the  complaint  is  defective  because  there  is  an  error  in  the 
name  of  the  defendant,  the  boat  being  called  in  the  body  of  the  com- 
plaint the  R.  R.  Roberts,  alias  the  New  Era,  and  in  the  note  the  T. 
W.  Roberts.  If  the  objection  could  be  raised  by  demurrer  it  could  only  be 
by  assigning  for  cause  of  demurrer  a  defect  of  parties  defendants.  This 
was  not  done.  The  proper  remedy  would  have  been  a  plea  in  abate- 
ment.'^ 

The  statute  requires  that  the  names  of  the  parties  plaintiff  and  de- 

(c)  Pomeroy's  Reni.,  §  206.  (i)  Pedens   v.   King,   30   Ind.   181; 

(d)  Ante,  §  487  et  seq.  Sinton  v.  The  Steamboat  R.  R.  Roberts, 

(e)  Makepeace  v.  Davis,  27  Ind.  352;     46  Ind.  476;  post,  §  509. 

Gaff  v.  May,  38  Ind.  267.  (j)   Citing  Mann  v.  Carley  and  Cha- 

(f )  Ante,  §  482.  pin  v.  Carley,  4  Cowen,  148;  Miller  v. 

(g)  Bliss' Code  PI.,  §427.  Stettiner,  7  Boswortb,  692;    Miller  v. 
(h)  Stephen  PI.  302.  Stettiner,  22  How.  Prac.  518. 


XIV.]  DEMURRER.  333 

fendant  shall  be  set  out  in  full.k  And  it  has  been  uniformly  held  un- 
der this  section  of  the  statute  that  the  Christian  as  well  as  surnames  of 
the  parties  must  be  set  out  in  full,  and  that  the  firm  name  of  a  part- 
nership is  not  sufficient.1  But  the  question  of  the  proper  manner  of 
raising  the  question  seems  to  have  received  but  little  consideration. 

In  Pollock  v.  Dunning  the  demurrer  was  for  want  of  capacity  to 
sue,  and  the  court  held  that  the  demurrer  should  have  been  sustained. 
In  Dale  v.  Thomas,  a  later  case,  it  was  held  that  a  demurrer  for  want 
of  capacity  did  not  raise  the  question.  In  the  Adams  Express  Co.  v. 
Hill  the  demurrer  was  for  want  of  sufficient  facts.  The  complaint 
was  held  to  be  good,  but  the  question  whether  the  objection  was  prop- 
erly raised  or  not  was  not  decided. 

The  authorities,  with  the  exception  of  Pollock  v.  Dunning,  are  uni- 
form that  the  question  can  not  be  raised  by  demurrer  for  want  of  ca- 
pacity to  sue.  And  while  it  can  not  be  said  that  the  question  is  settled 
by  authority  in  this  state,  it  is  believed  that  where  there  is  a  misnomer, 
that  is  where  a  party  sues  or  is  sued  by  a  wrong  name,  but  the  defect 
does  not  appear  on  the  face  of  the  pleading,  the  objection  must  be 
raised  by  plea  in  abatemeut ;  but  where  there  is  a  defect  in  the  name 
which  appears  on  the  face  of  the  complaint,  as,  for  example,  where  the 
initials  are  given,  or  a  firm  name,  in  violation  of  section  338,  a  demur- 
rer for  want  of  sufficient  facts  is  the  proper  remedy. 

506.  Answer  of  set-off  in  tort. — A  set-off  can  not  be  pleaded 
in  an  action  for  tort.m    Nor  can  a  debt  be  set  off  against  a  tort."     But 
the  question  as  to  the  proper  manner  of  raising  the  question  of  the 
sufficiency  of  such  a  pleading  is  not  so  well  settled, 

In  the  cases  of  Roback  v.  Powell  and  Allen  v.  Randolph  it  was  held 
that  a  demurrer  would  lie.  But  in  the  later  case  of  Boil  v.  Simms,  in 
which  the  direct  question  was  considered,  it  was  held  that  the  defect 
could  not  be  reached  by  demurrer,  but  by  motion  to  strike  out.0  This 
may  be  regarded  as  the  settled  practice  at  the  present  time. 

507.  Statute  of  limitations. — As  a  rule  in  this  state,  the  fact 
that  a  cause  of  action  or  defense  appears  on  the  face  of  the  pleading 

(k)  R.  S.  1881,  §  338.  (m)  K.  S.  1881,  §  348;  The  Indian- 

(1)  Haysa.  Lanier,  3  Blkf.322;  Hoi  apolis.   etc.,  R.  R.  Co.   v.    Ballard,  '_'•_' 

land  w.Butler,  5  Blkf.  255;  Livingston  Ind.   448;   Shelley  v.   Vanarsdoli,    2:5 

v.  Harvey,  10  Ind.  218;   O'Donald  v.  Ind.  543;    Roback  v.  Powell,  3t>  Ind. 

The  Evansville,  etc.,  R.  R.  Co.,  14  Ind.  515;  Harris  v.  Rivers,  53  Ind.  21  rt 

259;  The  Adams  Express  Co.  v.  Hill,  (n)  Allen  v.  Randolph,  48  Ind.  J90; 

43  Ind.  157;   Dale  v.  Thomas,  67  Ind.  Harris  v.  Rivers,  53  Ind.  216. 

670;  Pollock  v.  Dunning,  54  Ind.  US.  (o)  Boil  v.  Simms,  60  Ind.  162- 


334  DEMURRER.  [CHAP. 

to  be  barred  by  the  statute  of  limitations,  does  not  render  it  subject  to 
demurrer.  Where  there  are  exceptions  in  the  statute  it  is  not  neces- 
sary to  plead  the  exceptions  in  the  first  instance.  This  would  be  in 
violation  of  the  rule  that  the  complaint  should  not  anticipate  the  de- 
fense. If  there  are  exceptions  they  must  be  pleaded  by  way  of  reply, 
and  a  demurrer  will  not  reach  the  defect. p 

But  where  there  is  no  exception  in  the  statute  and  the  complaint 
shows  upon  its  face  that  the  action  is  barred,  demurrer  is  the  proper 
remedy. q 

508.  Amount  of  damages. — In  an  action  on  contract  for  dam- 
ages, where  the  complaint  avers  the  contract  and  a  breach,  a  demurrer 
will  not  reach  the  question  of  the  amount  of  damages  the  plaintiff  is 
entitled  to  recover.    The  allegation  of  the  making  of  the  contract  and  its 
breach,  discloses  a  cause  of  action  for  some  amount,  and  although  the 
complaint  does  not  allege  the  damages  sustained,  or  facts  from  which 
the  damages  can  be  ascertained,  the  plaintiff  is  still  entitled  to  nominal 
damages,  and  the  complaint  will  be  held  good  on  demurrer/ 

509.  Illegality  of  contract  made  on  Sunday. — It  has  been 
held  that  where  a  contract  sued  on,  shows  upon  its  face  to  have  been 
executed  on  Sunday,  the  question  of  the  legality  of  the  contract  can 
not  be  raised  by  demurrer.8 

The  court  say  on  a  petition  for  a  rehearing :  "  But  aside  from  this 
question  of  practice,  a  majority  of  the  court  are  of  the  opinion  that  the 
question  sought  to  be  raised  does  not  arise  upon  the  demurrer  to  the 
complaint.  The  point  insisted  upon  is  that  the  note  having  been  exe- 
cuted on  the  first  day  of  the  week,  commonly  called  Sunday,  it  is  abso- 
lutely void.  By  the  common  law,  a  contract  made  on  Sunday  was 
valid,  and  such  a  contract  only  becomes  invalid  under  and  by  force  of 
our  statute,  which  makes  it  unlawful  for  persons  to  perform  common 
labor  or  pursue  their  usual  avocation  on  Sunday.  But  there  is  an  ex- 
ception in  this  statute  in  favor  of  'such  as  conscientiously  observe  the 
seventh  day  of  the  week.'  The  exception  being  in  the  body  of  the 
statute,  it  is  necessary  that  it  should  be  shown  by  proper  averments 
that  the  act  complained  of  does  not  come  within  the  exception.  This 

(p)  Riser    v.   Snoddy,   7   Ind.   442;  etc.,  R.  R.  Co.,  32  Ind.  113;  Perkins  v. 

Bowman  v.  Malory,  14  Ind.  424;   Mat-  Rogers,  35  Ind.  124,  141. 
lock  v.  Todd,  25  Ind.  128;  Perkins  v.         (r)  The  Western  Union  Telegraph 

Rogers,  35  Ind.  124,  141;  ante,  §§  307,  Co.  v.  Hopkins,  49  Ind.  223;  Buskirk's 

308,  309.  Prac.,  p.  187. 

(q)  Hanna    v.    The    Jefferson ville,        (s)  Heavenridge  v.  Mondy,  34  Ind. 

28,  35. 


XIV.]  DEMURRER.  335 

can  not  be  done  by  demurrer,  but  must  be  done  by  answer.  Our  stat- 
ute only  affects  such  persons  as  do  not  conscientiously  observe  the 
seventh  day  of  the  week,  and  consequently,  a  contract  made  on  the  first 
day  of  the  week  by  persons  who  conscientiously  observe  the  seventh 
day  of  the  week  is  valid,  and  can  be  enforced  in  our  courts.  But  there 
is  another  reason  why  the  question  can  not  be  properly  raised  by  de- 
murrer. Contracts  that  are  prohibited  by  law  because  they  are  in  their 
nature  contrary  to  public  policy  or  repugnant  to  the  good  of  society  or 
public  morals  are  void,  and  in  their  very  nature  incapable  of  subse- 
quent ratification.  But  contracts  void  only  because  made  on  Sunday, 
proper  and  lawful  in  other  respects,  stand  on  a  different  basis,  and  form 
an  exception  to  the  general  rule  that  void  contracts  are  incapable  of 
subsequent  ratification."' 

510.  Defects  in  prayer. — A  defect  in  the  prayer  for  relief  is  not 
such  a  substantial  defect  as  can  be  reached  by  demurrer.     If  the  facts 
stated  entitle  the  party  to  any  relief,  the  complaint  must  be  held  good 
on  demurrer  if  no*  relief  is  prayed  for.     The  proper  remedy  is  a  motion 
to  make  the  complaint  more  specific." 

But  where  the  complaint  is  for  the  recovery  of  money,  the  amount 
of  the  demand  must  be  stated.T 

The  statement  of  the  amount  demanded  is  not  strictly  a  prayer  for 
relief.  It  is  an  allegation  of  a  material  fact,  made  necessary  by  an  ex- 
press provision  of  the  statute.  The  failure  to  allege  the  amount  de- 
manded is  therefore  a  substantial  defect. 

511.  Part  of  paragraph. — If  a  paragraph  taken  as  a  whole  states 
a  cause  of  action  or  defense,  a  part  of  the  paragraph,  though  defective, 
can  not  be  reached  by  demurrer.    The  remedy  is  by  motion  or  answer. w 
But  this  rule  is  subject  to  exceptions.     Thus,  in  an  action  on  a  bond, 
each  assignment  of  a  breach  is  regarded  as  so  far  a  separate  cause  of 
action  as  to  authorize  a  demurrer  to  each  breach  assigned  ;  and  if  such 
assignment  is  held  to  be  insufficient,  the  demurrer  thereto  must  be  sus- 

(t)  Love    v.  Wells,    25    Ind.   503;  (v)  K.   S.   1881,   §   338;    Colson    i-. 

Banks  v.  Werts,  13  Ind.  203 ;  Williams  Smith,  9  Ind.  8 ;  Kemp  v.  Mitchell,  36 

v.  Paul,  6  Bing.  653 ;  Summer  v.  Jones,  Ind.  249,  255. 

24  Verm.   317;    Adams    v.    Gay,    19  (w)  Estep   v.   Estep,   23   Ind.   114; 

Verm.  353 ;  Sargent  v.  Butts,  21  Verm.  O'Haver    v.    Shidler,    26    Ind.    278; 

99;  Clough  v.  Davis,  9  N.  Hamp.  500;  Voorhees    r.    Hushaw,   30  Ind.    488; 

Smiths.  Bean,  15  N.  Hamp.  576.  Smith  v.  The  Muncie  National  Bank, 

(u)  Bennett  v.  Preston,  17  Ind.  291;  29  Ind.  158;  Mathews  v.  Norman,  42 

Lowry  v.  Button,  28  Ind.  473;  Goodall  Ind.  176;  Beals  v.  Beals,  27  Ind.  77. 
v.  Mopley,  45  Ind.  355. 


336  DEMURRER.  [CHAP. 

tained,  although  there  are  others  sufficiently  alleged  in  the  same  para- 
graph.1 And  the  same  exception  applies  to  actions  for  slander.  There 
may  be  a  demurrer  to  each  set  of  words.7 

In  either  of  these  excepted  cases,  the  party  is  not  bound  to  demur, 
but  may  move  to  strike  out.z 

WHAT  DEFECTS   REACHED   BY   DEMURRER. 

512.  Departure. — The  question,  what  defects  are  reached  by  de- 
murrer, has  been  considered,  to  a  great  extent,  in  what  has  been  said 
of  the  several  statutory  causes  of  demurrer.  But  there  are  certain 
defects  in  pleading  that  have  been  held  to  be  within  the  statute,  about 
which  there  has  been  some  question.  Departure  is  a  violation  of  the 
rules  of  pleading.  A  departure  is  said  to  take  place  "  when  in  any 
pleading  the  party  deserts  the  ground  that  he  took  in  his  last  ante- 
cedent pleading  and  resorts  to  another."* 

Under  our  system  of  pleading,  this  can  only  occur  in  the  reply. 

The  decisions  in  this  state  have  not  been  uniform  .as  to  the  proper 
manner  of  raising  the  question.  It  was  first  held  that  a  departure  was 
cause  for  demurrer  under  the  code.b  But  this  case  was  expressly  over- 
ruled by  a  later  case.0 

The  court  say:  "  If  the  reply  was  a  departure,  still  a  departure  is 
not  a  ground  of  demurrer.  The  objection  should  be  taken  by  motion. 
In  Will  v.  Whitney,  15  Ind.  194,  the  mode  of  taking  the  objection  by 
demurrer  was  apparently  approved  ;  but  the  point  was  not  much  con- 
sidered. We  are  satisfied,  upon  reflection,  that  a  reply  which  may  be 
a  departure,  technically,  may  still  contain  facts  which,  being  permitted 
to  go  into  the  case  without  objection,  should  avoid  an  answer.  This 
being  so,  a  demurrer  for  departure  can  not  be  said  to  rest  upon  the 
ground  that  facts  sufficient  are  not  stated,  etc.,  and  it  is  not  made,  in 
terms,  a  ground  of  demurrer."  The  rule  thus  laid  down  was  adhered 
to  in  a  later  case.*1 

But  in  McAroy  v.  Wright,  25  Ind.  22,  the  court  returned  to  the  rule 
as  first  decided,  and  overruled  the  cases,  holding  that  departure  was 
not  cause  for  demurrer.  In  passing  upon  the  question,  the  court  say : 

"A  reply  which  confesses  its  allegations  confesses  that  the  complaint 

(x)  Colburn    v.  The   State,  47  Ind.  (z)  Colburn  v.  The  State,  47  Ind.  310. 

310;  Richardson  v.  '1  he  State,  55  Ind.  (a)  Stephen  PI.,  9  Am.  ed.,  p.  410; 

381 ;  Buskirk's  Prac.,  p.  180.  R.  S.  1881,  §  357. 

(y)  Rodgers   v.  Lacy,  23  Ind.  507;  (b)  "Will  v.  Whitney,  15  Ind.  194. 

Harrison    v.    Findley,   23    Ind.    265;  (c)  Reilley  v.  Rucker,  16  Ind.  303. 

Keersling  v.  McCall.  36  Ind.  321 ;  Tay-  (d)   Deacon  v.  Swartz,  18  Ind.  285. 
lor  v.  Short,  40  Ind.  506. 


XIV.  "I  DEMURRER.  337 

J 

is  not  true,  and  necessarily  abandons  the  cause  of  action  made  by  the 
complaint. 

"  The  paragraph  of  reply  under  consideration  does  this,  and  in  setting 
up  other  facts  in  avoidance  makes  a  new  and  different  ground  of  action. 
There  is  not  entire  uniformity  in  the  decisions  of  this  court  as  to  the 
proper  method  of  taking  advantage  of  the  vice  of  departure  in  a  reply 
which,  it  may  be  remarked,  is  the  only  pleading  under  the  code  in 
which  it  can  ever  exist.  It  is  not  important  in  this  case  to  determine 
whether  it  must  be  done  by  demurrer  or  by  motion,  as  here  botli 
methods  were  used  in  the  court  below.  The  statute  (section  67  of  the 
code)  expressly  forbids  a  departure,  but  adds,  very  strangely,  that  the 
defendant  may  demur  to  a  reply  for  any  of  the  causes  specified  for  de- 
murring to  a  complaint.  This  is  simply  nonsense,  and  if  construed 
literally  would  make  every  reply  that  any  sensible  lawyer  would  be 
willing  to  prepare  subject  to  demurrer.  It  can  not  be  so  construed, 
for  it  is  beyond  'belief  that  the  legislature  meant  to  require  that  the 
reply  should  repeat  the  complaint.  If  it  seeks  by  new  matter  to  avoid 
the  answer,  and  does  not  allege  sufficient  facts  for  that  purpose,  it  must 
be  held  bad  on  demurrer  assigning  that  cause.  At  common  law,  if  the 
replication  did  not  support  the  declaration,  it  was  bad  on  general  de- 
murrer, but  it  was  too  late  to  make  the  objection  after  verdict,  and  the 
judgment  would  not  be  arrested  if  the  new  ground  assumed  by  the 
replication  was  sufficient  to  found  an  action  upon.  We  see  nothing  in 
the  code  to  change  the  previous  rule.  It  is  said,  in  Reilly  v.  Rucker, 
16  Ind.  303,  that  a  reply  which  may  be  a  departure,  technically,  may 
still  contain  facts  which,  being  permitted  to  go  into  the  case  without 
objection,  should  avoid  an  answer.  We  do  not  see  how  this  can  be 
possible  in  the  nature  of  things.  As  already  intimated,  a  departure 
under  the  code  admits  the  groundlessness  of  the  cbmplaint,  abandons 
the  case  made  by  it  aud  makes  a  new  case.  This  does  not  in  any  sense 
avoid  the  answer,  but  confesses  it  without  avoiding  it,  otherwise  it 
would  not  be  a  departure  at  all.  The  opinion  of  Marvin,  J.,  in  White 
v.  Joy,  3  Kernan,  83,  is  to  the  same  effect  as  Reilly  v.  Rucker.  It,  in 
like  manner,  loses  sight  of  the  essential  definition  of  a  departure,  and 
proceeds  to  reason  about  a  reply  as  being  a  departure  which  was  not 
such,  and  held  not  to  be  by  six  of  the  seven  judges  in  that  very  case. 
Inasmuch,  then,  as  a  departure  is  always  a  confession  of  the  answer 
without  alleging  sufficient  facts  to  avoid  it  and  make  a  new  case,  we 
think  that  the  objection  may  be  taken  by  demurrer,  and  that  in  the 
present  case  the  court  below  erred  in  overruling  the  demurrer  to  the 
second  paragraph  of  the  reply." 
22 


338  DEMURRER.  [CHAP. 

It  will  be  seen,  from  the  different  views  expressed  by  the  court,  that 
the  question  is  not  free  from  doubt.  But  the  rule  laid  down  in  the 
case  of  McAroy  v.  Wright  has  since  been  recognized  as  the  law.6 
Aiid  this  may  be  taken  as  the  settled  rule  in  this  state. 

513.  That  written  instrument  foundation  of  the  action  or 
defense,  is  not  made  part  of  the  pleading. — What  are  written 
instruments  within  the  meaning  of  the  statute,  and  where  they  will  be 
regarded  as  the  foundation  of  the  action,  have  been  considered/ 

Under  our  code  the  written  instrument  which  is  the  foundation  of 
the  action  is  held  to  be  a  material  part  of  the  pleading,  and  the  omis- 
sion to  set  out  either  the  original  or  a  copy  renders  the  pleading  bad  on 
demurrer  for  want  of  sufficient  facts.8 

514.  The  statute  of  frauds. — That  a  contract  sued  on  appears 
on  the  face  of  the  complaint  to  be  within  the  statute  of  frauds  is  cause 
for  demurrer.11     And  if  the  contract  is  such,  that  to  be  valid  it  must 
be  in  writing,  under  the  statute  of  frauds,  where  it  is  not  alleged  in  the 
complaint  to  be  in  writing,   it  will  be  conclusively  presumed  to  be 
verbal,  and  the  complaint  held  bad  on  demurrer.     The  rule  was  other- 
wise at  common  law.    Under  our  statute  it  is  held  that,  where  the  con- 
tract is  not  shown  to  be  in  writing,  but  may  be  taken  out  of  the  statute 
by  part  performance,  or  otherwise,  the  facts  necessary  to  show  that  the 
contract,  though  not  in  writing,  is  not  within  the  statute,  must  be  alleged 
in  the  complaint,  or  it  will  be  subject  to  demurrer.1 

515.  Estoppel. — Where  the  pleading  shows,  upon  its  face,  such 
matter  as  would  estop  the  party  from  maintaining  the  action  or  defense, 

it  is  cause  for  demurrer. j 

i 

(e)  Bearrs  v.  Montgomery,  46  Ind.  prise  Ins.  Co.,  45  Ind.  43  ;  Cook  v.  Hop- 
544;  Shirts  v.  Irons,  47  Ind.  445;  Kim-  kins,  66  Ind.  208;  The  Pennsylvania 
berlin  v.  Carter,  49  Ind.  111.  Co.  v.  Holderman,  69  Ind.  18;   Brown 

(f )  Ante,  §  47.  v.  The  State,  44  Ind.  222;  ante,  §  415. 

(g)  Prices.  The  Grand  Rapids,  etc.,         (h)  Harper  v.  Miller,  27  Ind.  277; 
R.  R.  Co.,  13  Ind.  58;  Herron  v.  Clif-  Crosby    v.   Jeroloman,    37   Ind.   264; 
ford,  18  Ind.  411;  West  v.  The  Bull-  Berkshire    v.    Young,    45    Ind.    461; 
skin  Prairie  Ditching  Co.,  19  Ind.  458;  Krutz  v.  Stewart,  54  Ind.  178;  Suinan 
Westfall  v.  Stork,   24  Ind.  377;   Sea-  v.  Springate,  67  Ind.  115. 

wrightu.  Coffmnn.  24  Ind.  414;  Spaul-  (i)  Krohn   v.   Bantz,   68   Ind.   277: 

diiig  v.  Baldwin,  31  Ind.  370;    Plow-  ante,  §421. 

man  v.  Shidlor,  36  Ind.  484;  Hamrick  (j)  French    v.    Blanchard,    10    Ind. 

v.  Craven,  39  Ind.  241;  Galbreath  v.  143;  The  City  of  Aurora  v.  Cobb,  21 

McNeilen,40  Ind.  231 ;  Mercer  v.  Her-  Ind.  492;  Greenup  v.  Crooks,  50  Ind. 

bert,  41  Ind.  459;   King  v.  The  Enter-  410;  Trimble  v.  The  State,  4  Blkf.  435. 


XIV.]  DEMURRER.  339 

516.  Variance. — A  variance  usually  occurs  between  the  pleadings 
and  the  proof  on  the  trial,  and  does  not  arise  upon  the  pleadings.     But 
under  our  system  of  practice  the  written  instrument  must  be  filed  with 
and  made  part  of  the  pleading.     It  sometimes  occurs  that  the  exhibit 
filed  varies  from  the  allegations  of  the  complaint.     When  this  occurs, 
and  the  recitals  of  the  written  instrument  are  such  that,  if  true,  the 
plaintiff  would  not  be  entitled  to  recover,  the  complaint  will  be  held  bad, 
notwithstanding  the  complaint,  aside  from  the  exhibit,  may  state  a 
cause  of  action. k 

517.  In   claims   against  estates. — Claims  against  estates  are 
governed  by  the  same  rules  as  other  pleadings,  so  far  as  the  proper 
manner  of  testing  their  sufficiency  is  concerned.     They  may  be  tested 
by  demurrer.1 

518.  When  demurrer  equivalent  to  motion  to  strike  out 
or  dismiss. — Having  attempted  to  show  what  defects  in  pleading  are 
reached  by  demurrer  and  what  by  motion,  it  is  well  to  consider  the 
effect  of  demurring  where  the  remedy  should  be  by  motion.    The  effect 
of  a  failure  to  demur  is  considered  farther  on.m 

It  has  been  held  in  a  number  of  cases  that,  where  the  proper  remedy 
is  by  a  motion  to  dismiss  or  to  strike  out  a  pleading  or  paragraph,  but, 
instead,  a  demurrer  has  been  sustained,  the  demurrer  will  be  regarded 
as  equivalent  to  a  motion,  as  the  same  result  has  been  reached." 

WHAT  IS  WAIVED   BY   FAILURE  TO   DEMUR. 

519.  All  defects  appearing  on  face  of  pleading. — It  has  been 
shown  that  where  such  a  defect  as  is  cause  for  demurrer  appears  on  the 
face  of  the  complaint,  except  the  objection  be  that  the  court  has  not 
jurisdiction  of  the  subject-matter  of  the  action,  or  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  the  ob- 
jection must  be  raised  by  demurrer.0 

This  general  rule  includes  all  of  the  causes  of  demurrer  named  in 
the  statute,  except  the  two,  for  want  of  j  urisdiction  of  the  subject- 
matter,  and  that  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action ;  and  where  the  defect  appears  upon  the  face  of 
the  complaint,  if  the  objection  is  not  taken  by  demurrer,  it  is  waived. p 

(k)  The  City  of  Elkhart  v.  Simon-  (n)  Spahr  v.  Schofield,  66  Ind.  168. 

ton,    71    Ind.   7,    17,   and    authorities  (o)  Ante,  §478;  R.  S.  1881,  §  343. 

cited;  ante,  §416.  (p)  JR.  S.  1881,   §  343;    Busk.  Prac. 

(1)  R.  S.I  881,  §2324.  171. 

(m)  Post,  §519. 


340  DEMURRER.  [CHAP. 

The  following  defects  appearing  on  the  face  of  the  pleading  must, 
under  the  statute,  be  reached  by  demurrer,  or  they  are  waived : 

1.  That  the  court  has  not  jurisdiction  of  the  person  of  the  de- 
fendant.*1 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

3.  That  there  is  another  action  pending. 

4.  That  several  causes  are  improperly  joined/  and  this  objection  can 
not  be  raised  by  answer.8 

520.  Exception  ;  that  the  court  has  not  jurisdiction  of  the 
subject-matter,  and  that  complaint  does  not  state  facts  suf- 
ficient not  waived. — It  is  expressly  provided  by  the  code  that  the 
objections  that  the  court  has  not  jurisdiction  of  the  subject-matter,  and 
that  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action,  are  not  waived  by  a  failure  to  demur,4  and  it  has  been  so 
held  in  numerous  cases. u 

521.  Defects  cured  by  verdict  not  waived. — The  rule  that  the 
objection  that  the  complaint  does  not  state  facts  sufficient,  is  not  waived 
by  a  failure  to  demur  is  materially  modified  by  the  doctrine  of  "  intend- 
ment  after  verdict."     The  pleader  who  purposely  omits  to  demur  to 
the  complaint,  for  the  reason  that  the  omission  does  not  waive  the  ob- 
jection, should  not  overlook  the  fact  that  a  complaint,  bad  on  demur- 
rer, is  sometimes  held  to  be  good  after  verdict.     If  the  defect  is  such 

(q)  Keiser  v.  Yandes,  45  Ind.  174;  Ind.  71;    Tomlinson   v.  Hamilton,   27 

Newell  v.  Gatling,  7  Ind.  147;    Alii-  Ind.  139;    Hannum   v.  The   State,  38 

son   v.  Hedges,  5  Blkf.  546;    The  In-  Ind.  32;  Livesey  v.  Livesey,  30  Ind. 

dianapolis,  etc.,  R.  R.  Co.  v.  Kenner,  17  398;  Newhouse  v.  Miller,  35  Ind.  463; 

Ind.  135;  Single  v.  Bickle,  17  Ind.  325;  Riley  v.  Butler,  36  Ind.  51;  Heitman 

Brady  v.  Richardson,  18  Ind.  1 ;  Lud-  v.   Schnek,   40    Ind.   93;    Bonham    v. 

wick  v.  Beckamire,  15  Ind.  198;  Van-  Keen,  40  Ind.  197;  Wright  v.  Norris, 

schiack  v.  Farrow,  25  Ind.  310;  Ham-  40   Ind.   247;    Baker   v.  Simmons,  40 

rick  v.  The  Danville,  etc.,  Gravel  Road  Ind.  442;  Davis  v.  Perry,  41  Ind.  305; 

Co.,  32  Ind.  347;  Nesbit  v.  Long,  37  Mercer  v.  Patterson,  41  Ind.  440;  Mil- 

Ind.  300.  ler  v.  Billingsley,  41  Ind.  489;  Ridge- 

(r)  Rankin  v.  Collins,  50  Ind.  158.  way  i\  Dearinger,  42  Ind.  157;  Pack- 

(s)  R.  S.  1881,  §  343.  ard  v.  Mendenhall,  42  Ind.  598;  Mc- 

(t)  R.  S.  1881,  §  343.  Goldrick  v.  Slevin,  43  Ind.  522;  Sparks 

(u)  Bolster  v.  Catterlin,  10  Ind.  117;  v.  Heritage,  45  Ind.  66  ;  Scott  v.  The 

Blackledge  v.  Benedick,  12  Ind.  389;  Indianapolis  Wagon  Works,  48  Ind. 

McClure  v.  McClure,  19  Ind.  185;  Kip-  75;  Ford  v.  Broker,  53  Ind.  395  ;  The 

hart  v.  Brenneman,  25  Ind.  152;  The  Town  of  Brazil  v.  Kress,  55  Ind.  14. 

Toledo,  etc.,  R.  W.  Co.  v.  Tilton,  27 


XIV  ]  DEMURRER.  341 

as  to  be  cured  by  verdict,  the  party  is  deprived  of  the  benefit  of  the 
objection,  the  effect  being  the  same  as  a  waiver.7 

What  defects  are  cured  by  verdict  will  be  considered  in  another 
place. w 

WHEN   DEMURRER   REACHES   BACK. 

522.  For  defects  not  cured  by  failure  to  demur. — A  demur- 
rer, filed  to  a  subsequent  pleading,  may  sometimes  be  carried  back, 
and  sustained  to  the  complaint  or  answer.     This  can  not  be  done, 
however,  where  the  defect  is  one  that  is  waived  by  a  failure  to  demur.1 

Thus,  it  has  been  held  that  a  defect  of  parties,  which  appears  on  the 
face  of  the  complaint,  can  not  be  reached  by  a  demurrer  to  the  answer.7 

523.  "Want  of  jurisdiction,   and   that   pleading   does   not 
state  facts  sufficient. — Under  the  code  of  1852,  as  originally  en- 
acted, it  was  held  that  the  only  defect  in  the  complaint  that  could  be 
reached  by  a  demurrer  to  a  subsequent  pleading  was  want  of  jurisdic- 
tion, for  the  reason  that  section  54,  as  it  then  stood,  provided  that  all 
other  objections,  except  to  the  jurisdiction  of  the  court  over  the  subject- 
matter,  should  be  waived  by  failure  to  demur.* 

The  code  was  afterwards  amended,  by  excepting  from  the  effects  of 
a  failure  to  demur,  the  objection  that  the  complaint  does  not  state  facts 
sufficient.*  * 

Since  this  amendment,  it  has  been  held  that  the  objection  that  the 
complaint  does  not  state  facts  sufficient  is  not  waived  by  a  failure  to 
demur  ;b  and  not  being  waived,  the  demurrer  reaches  back  for  that 
cause. 

By  the  revision  of  1881,  section  54  is  again  amended  by  providing 
that  the  objection  that  the  action  is  brought  in  the  wrong  county,  if 
not  taken  by  answer  or  demurrer,  shall  be  deemed  to  have  been 
waived.0  Therefore  a  demurrer  will  not  reach  back  for  this  cause. 

(v)  Bliss'  Code  PI.,  §438;  Westfall  (w)  Post,  §  532. 
v.   Stark,   24   Ind.  377;    Dickerson   v.  (x}  Buskirk's  Prac.,  p.  178. 
Hays,  4  Blkf.  44;  Peck  v.  Martin,  17  (y)  McEwen  v.  Hussey,  23  Ind.  395. 
Ind.  115;  The  Indianapolis,  etc.,  R.  R.  (z)  2  R.  S.  1852,  p.  39,  §  54;  John- 
Co,  v.  Petty,  30  Ind.  261 ;  Eigenman  v.  son  v.  Stebbins,  5  Ind.  364;  Mason  v. 
Backof,  56    Ind.   594;    Tomlinson   v.  Toner,  6  Ind.  328;  Freeman  w.  Robin- 
Hamilton,  27   Ind.  139;    Howorth  v.  son,  7  Ind.  321 ;  Gimbel  v.  Smidth,  7 
Scarce,  29   Ind.  278;    Gander  v.  Tho  Ind.  627  ;  Menifee  v.  Clark,  35  Ind.  304. 
State,  50  Ind.  539;  Wiles  v.  Lambert,  (a)  2  R.  S.  1876,  p.  59,  §  54;  R.  S. 
66  Ind.  494;    Galvin   v.  Woollen,    66  1881,  §  343. 

Ind.  464;  Smith  v.  Freeman,  71  Ind.  (b)  Ante,  §  484,  and  authorities  there 

85;  2  R.  S.  1876,  p.  83,  \  101 ;  Ibid.,  p.  cited. 

246,  §  580.  (e)  R.  S.  1881,  §  343. 


342  DEMURRER.  [CHAP. 

The  rule  may  be  regarded  as  established  that  the  objection  that  the 
court  has  not  jurisdiction  of  the  subject-matter,  save  on  the  ground 
that  the  action  is  brought  in  the  wrong  county,  and  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  may  be 
reached  by  a  demurrer  to  a  subsequent  pleading.*1 

524.  Demurrer  to  reply  reaches  defects  in  answer  and 
complaint. — The  provisions  of  section  343  are  limited  to  objections 
to  the  complaint.     The  code  formerly  provided  that  "  where  the  facts 
stated  in  the  answer  are  not  sufficient  to  constitute  a  cause  of  defense, 
the  plaintiff  may  demur  to  one  or  more  of  several  defenses,  under  the 
same  rules  and  regulations  as  heretofore  prescribed  for  demurring  to 
the  complaint.      Unless  the  objection  be  taken  by  demurrer,  it  shall  be 
deemed  to  be  waived.6 

Under  this  section,  it  was  held  that  a  demurrer  to  the  reply  would 
reach  back  to  the  answer  or  complaint,  where  either  showed  a  want  of 
jurisdiction  of  the  court  over  the  subject-matter,  or  failed  to  state  facts 
sufficient  to  constitute  a  cause  of  action  or  defense/ 

It  was  claimed,  under  section  64,  that  as  all  objections  to  the  answer 
not  taken  by  demurrer  were  waived,  the  demurrer  to  the  reply  could 
not  be  carried  back,  and  this  was  in  harmony  with  the  decisions  of  the 
supreme  court,  as-applied  to  the  complaint.  But  the  supreme  court 
held  that,  notwithstanding  this  provision  of  the  section,  the  demurrer 
could  be  carried  back.(l)  But  where  a  demurrer  to  the  reply  has  been 
overruled,  the  plaintiff  can  not,  on  appeal,  raise  the  question  that  it 
should  have  been  carried  back  to  the  answer.  (2) 

525.  Ruleunderthe  Revised  Statute  of  1881. — By  the  Revised 
Statutes  of  1881,  section  64 is  very  materially  changed.     It  provides: 

"  Sec.  346.  Where  the  facts  stated  in  any  paragraph  of  the  answer 
are  not  sufficient  to  constitute  a  cause  of  defense,  the  plaintiff  may  de- 
mur to  it  under  the  rules  prescribed  for  demurring  to  a  complaint." g 

It  will  be  seen  that,  under  this  amended  section,  there  is  but  one 
cause  of  demurrer:  viz.,  that  the  answer  does  not  state  facts  sufficient. 

The  provision  that  the  objection  shall  be  waived  by  a  failure  to  de- 
mur is  omitted.  At  common  law  the  insufficiency  of  the  pleading  was 

(d)  Batty  v.  Font,  54  Ind.  482;  Kel-  The  ^Etna  Ins.  Co.  v.  Baker,  71  Ind. 
log  v.  Tout,  G-J  Ind.  146.  102. 

(e)  2  R.  S.  187G,  p.  05.  §  64.  (1)  Standley   v.  Northwestern,  etc., 

(f)  Menifeo  v.  Clark,  35  Ind.  304;  "Life  Ins.  Co.,  95  Ind.  254. 

Wiley  v.  Howard,  15  Ind.  169;   Busk.         (2)  Scheible  r.  Slavic,  89  Ind.  323. 
Prac.  p.  178;   Drook  v.  Irvine,  41  Ind.         (g)  E.  S.  1881,  §  346. 
430;  Unfried  v.  Heberer,  63  Ind.  67; 


XIV.]  DEMURRER.  343 

not  waived  by  a  failure  to  demur,  and  a  demurrer  to  a  subsequent 
pleading  would  be  carried  back.1' 

And  as  under  the  section,  as  revised,  there  is  no  waiver  by  a  failure 
to  demur,  a  demurrer  to  the  reply  must  be  sustained  to  the  answer  if 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of  defense. 

But  as  there  is,  under  this  section,  but  one  cause  of  demurrer,  a  de- 
murrer to  the  reply  can  only  reach  the  answer  where  this  cause  exists. 

To  the  extent  that  the  decisions,  under  the  original  section,  hold 
that  the  demurrer  will  be  carried  back  where  the  answer  states  a  cause 
of  defense,  not  within  the  jurisdiction  of  the  court,  they  are  not 
applicable  to  the  amended  section. 

526.  Demurrer  to  plea  in  abatement  can  not  be  carried 
back. — The  rule  that  a  demurrer  to  the  answer  will  be  carried  back 
to  the  complaint,  applies  to  answers  to  the  merits.     A  demurrer  to  a 
plea  in  abatement  can  not  be  carried  back.' 

WHAT   DEMURRER   ADMITS. 

527.  Facts  well  pleaded. — For  the  purposes  of  the  demurrer, 
the  facts  stated  in  the  pleading  demurred  to  are  taken  to  be  true,  so 
far  as  they  are  well  pleaded. J 

Strictly  speaking  the  demurrer  does  not  admit  the  facts  to  be  true, 
although  the  rule  is  so  expressed.  While  an  answer,  or  other  plead- 
ing, may  be  used  in  evidence  against  a  party  where  it  contains  an  ad- 
mission, a  demurrer  can  not  be  used  for  any  such  purpose.  It  does 
not  contain  an  admission  of  any  fact.k 

The  effect  of  the  rule  is,  that  for  the  purpose  of  determining  the 
question  of  law  presented  by  the  demurrer,  the  facts  well  pleaded  are 
taken  by  the  court  to  be  true.  It  is  only  such  facts  as  are  well  pleaded 
that  can  thus  be  taken  to  be  true.  Thus,  it  is  held  that  conclusions  of 
law,  though  alleged  in  the  pleading,  are  not  admitted  to  be  true.1 

The  rule  that  it  is  only  such  facts  as  are  well  pleaded  that  can  be 
taken  to  be  true,  must  be  taken  to  mean  such  facts  as  would  be  well 
pleaded  when  tested  by  demurrer.  A  pleading  may  be  objectionable 
on  the  ground  of  uncertainty,  indefiniteness,  or  other  defects  that  can 
only  be  reached  by  motion ;  but  facts  thus  alleged  must  be  taken  to  be 

(h)  Msnifee  v.  Clark,  35  Ind.  304;  ing  Mill  Ass'n  v.  The  Cutler  &Savidge 

Bliss'   Code    PL,   §  417;    Tillotson   v.  Lumber  Co.,  64  Ind.  560;   Bliss'  Code 

Stipp,  1  Blkf.  77.  PI.,  §  418;   Goddard  v.  Stockman,  74 

(i)  Price  v.  The  Grand  Kapids,  etc.,  Ind.  400. 

E.  R.  Co.,  18  Ind.  137.  (k)  Bliss'  Code  PI.,  §  418. 

(j)  Story's    Eq.    PI.,   9   ed.,    §  452;  (1)  Bliss'   Code   PI.,   §   418;  Story's 

Stephen  PI.  143;  The  Southside  Plan-  Eq.  PI.,  \  452,  and  cases  cited. 


344  DEMURRER.  [CHAP. 

well  pleaded  under  the  rule.  The  party  may  move  to  make  the 
pleading  more  certain  or  definite  before  demurring.  If  he  neglects 
to  do  this  the  facts  must  be  taken  to  be  true  as  pleaded,  for  the  pur- 
poses of  his  demurrer. 

JOINT,   SEVERAL,   AND    SEPARATE  DEMURRERS. 

528.  When  joint  or  several. — Demurrers  may  be  joint  or  sev- 
eral, either  as  to  the  parties  who  demur,  or  as  to  the  pleading  to  which 
the  demurrer  is  addressed.  A  demurrer  is  joint,  as  to  the  pleading, 
when  addressed  to  an  entire  pleading  consisting  of  more  than  one  par- 
agraph. It  is  joint,  as  to  the  parties,  where  several  parties  join,  in  the 
same  demurrer,  either  to  the  whole  pleading  or  to  separate  paragraphs. 
A  demurrer  is  several  when  addressed  to  but  one  paragraph  of  a 
pleading,  or  to  each  of  the  several  paragraphs  separately."1 

Where  the  demurrer  is  in  terms  addressed  to  the  whole  pleading,  or 
to  one  paragraph,  without  attempting  to  demur  to  the  others,  there  ia 
no  difficulty  in  determining  whether  the  demurrer  is  joint  or  several. 
But  it  frequently  occurs  that  the  pleader  attempts  to  use  such  language 
as  will  make  the  demurrer  both  joint  and  several,  applying  it  to  the 
whole  complaint,  and  to  each  of  the  paragraphs,  or  attempts  to  demur 
to  each  of  the  paragraphs  in  the  same  demurrer.  There  is  much  con- 
fusion in  the  cases  as  to  the  words  necessary  to  make  the  demurrer 
several." 

What  words  are  necessary  to  constitute  a  several  demurrer  was  fully 
considered  in  Silvers  v.  The  Junction  R.  R.  Co.  The  court  say  :  "  The 
rule  seems  to  be  well  settled  that  it  is  not  necessary  to  make  a  demur- 
rer several  that  it  should  be  addressed  in  terms  to  each  paragraph  of 
the  pleading  to  which  it  is  filed.  The  use  of  the  words  severally  and 
each  will  cause  a  demurrer  to  be  treated  as  several,  although  it  is  not 
separately  addressed  to  each  paragraph.  Much  confusion,  delay,  and 
expense  would  be  saved  if  some  recognized  form  was  adhered  to  by 
counsel.  It  is  always  the  better  practice  to  make  a  demurrer  several. 
There  is  nothing  gained,  and  frequently  much  inconvenience  results 
from  a  joint  demurrer.  From  the  adjudged  cases  in  this  court,  since 
the  adoption  of  the  code,  there  is  no  room  to  doubt  that  a  demurrer  in 

(m)  Busk.  Prac.  193.  444;   Aiken   v.   Bruen,    21    Ind.   137; 

(n)  Lane  v.  The  State,  7  Ind.  426;  Hume  v.  Dessar,  29  Ind.  112;  Silvers 

Earner  v.  Morehead,  22  Ind.  354;  Jew-  v.  The  Junction  11.  K.  Co.,  43  Ind. 

ett  v.  The  Honey  Creek  Draining  Co.,  435;  Rennick  v.  Chandler,  59  Ind. 

39  Ind.  245;  Parker  v.  Thomas,  19  354;  Stanford  P.  Davis,  54  Ind.  45; 

Ind.213;  Fankboner  v.  Fankboner,  20  '  Meyer  p.Bohlfing,  44  lnd.238;  Wash- 

Ind.  62;  Brown  v.  Gooden,  16  Ind.  ington  Townships.  Bonney,  45  Ind.  77, 


XIV.]  DEMURRER.  345 

the  following  form,  under  the  fifth  specification,  would  be  held  to  be  a 
several  demurrer :  Comes  now  tiie  defendant  and  demurs  separately  and 
severally  to  each  paragraph  of  the  complaint,  and  for  cause  of  demurrer 
says  that  neither  of  said  paragraph  contains  facts  sufficient  to  constitute  a 
cause  of  action.  A  demurrer  to  the  answer  or  reply  in  the  same  form, 
with  a  change  of  phraseology,  so  as  to  adapt  it  to  the  particular  plead- 
ing, would  in  like  manner  be  treated  as  several."  ° 

The  supreme  court  has  thus  definitely  settled  what  shall  be  necessary 
to  constitute  a  several  demurrer.  A  little  care  on  the  part  of  the 
pleader  in  using  the  language  of  the  supreme  court  will  avoid  any 
question  as  to  the  form  of  the  demurrer. 

529.  Separate  demurrers. — A  demurrer  is  separate  when  filed 
by  one  of  several  plaintiffs  or  defendants.1*    It  may  be  either  joint  or 
several  as  to  the  pleading.     Where  there  is  any  question  as  to  whether 
the  pleading  may  be  good  as  to  some  of  the  parties  and  bad  as  to  the 
others,  a  separate  demurrer  should  be  filed  for  each.     Where  a  party 
demurs  alone,   there  can  be  no  question  as  to  the  demurrer  being 
separate. 

Mr.  Buskirk,  in  his  work  on  Practice,  very  properly  lays  down  a 
form  for  a  separate  demurrer. q 

But  it  is  not  necessary  that  such  a  form  should  be  followed.  Where 
the  party  demurs  alone,  his  demurrer  must  be  held  to  be  separate, 
whether  he  so  states  in  his  demurrer  or  not. 

530.  Demurrer  joint  as  to  pleading  must  be  overruled,  if 
either  paragraph  good. — The  importance  of  determining  whether 
a  demurrer  should  be  joint  or  several,  and  what  language  is  necessary 
to  make  it  several,  is  manifest. 

A  joint  demurrer  goes  to  the  whole  pleading,  and  if  any  one  of  the 
paragraphs  is  good,  the  demurrer  must  be  overruled,  notwithstanding 
some  of  the  paragraphs  may  be  bad/ 

(o)  Silvers  v.  The  Junction  R.  R.  v.  Bowless,  15  Ind.  242;  Brown  v. 

Co.,  43  Ind.  435,  444;  Busk.  Prac.,  p.  Goodin,  16  Ind.  444;  Urton  v.  Luckey, 

195.  17  Ind.  213;  Whitehall  v.  The  State, 

(p)  Busk.  Prac.,  p.  194.  19  Ind.  27;   Heavenridge  v.    Mondy, 

(q)  Busk.  Prac.,  p.  195.  34  Ind.  28;  The  Jeffersonville,  etc.,  R. 

(r)  The  Excelsior  Draining.  Co.  v.  li.  Co.  v.  Cox,  37  Ind.  325;  Jewett  v 
Brown,  47  Ind.  19;  Towell  v.  Pence,  The  Honey  Creek  Draining  Co.,  39 
47  Ind.  304;  Rhodes  v.  Piper,  47  Ind.  Ind.  245;  The  Jeffersonville,  etc.,  R. 
457;  Modlin,  Adm'r,  v.  The  North-  R.  Co.  v.  Vane-ant,  40  Ind.  233;  Wash- 
western  Turnpike  Co.,  48  Ind.  492 ;  ington  Township  v.  Bonney,  45  Ind. 
Alexander  v.  Garr,  15  Ind.  89 ;  Webb  77  ;  The  Board  of  Comm'rs  of  Jennings 


346  DEMURRER.  [CHAP. 

Therefore,  it  is  safer  m  every  case  where  the  pleading  consists  of 
more  than  one  paragraph  to  make  the  demurrer  several. 

By  making  the  demurrer  several  and  applying  it  to  all  of  the  para- 
graphs, the  whole  complaint  is  tested  as  effectually  as  if  the  demurrer 
were  joint  in  form,  and  the  party  has  the  advantage  of  testing  the 
sufficiency  of  each  paragraph.  If  either  is  bad  the  demurrer  must  be 
sustained  to  that  paragraph,  though  it  may  not  be  well  taken  as  to  the 
other.3 

531.  Joint  as  to  parties  must  be  overruled  if  pleading  is 
good  as  to  either. — A  demurrer  may  be  joint  as  to  the  parties,  and 
either  joint  or  several  as  to  the  pleading  to  which  it  is  addressed.     If 
it   is  joint  as  to  the  pleading,  and  either  paragraph  is  good  against 
either  party  demurring,  it  must  be  overruled.     If  several  as  to  any 
paragraph  good  against  either  of  the  parties,  it  must  be  overruled  as 
to  that  paragraph.     If  bad  as  to  all  it  should  be  sustained. 

If  in  either  case  the  pleading  or  paragraph  to  which  the  demurrer 
applies  is  good  as  to  any  one  of  the  parties,  though  it  may  be  bad  as  to 
the  others,  it  must  be  overruled  as  to  all  of  them.' 

Unless  the  rights  of  the  parties  are  identical,  and  the  cause  of  action 
or  defense  applicable  to  all  alike,  it  is  the  safer  practice  to  file  separate 
demurrers. 

HOW   DEFECTIVE   PLEADING   CURED. 

532.  By  verdict. — The  doctrine  of  intendment  after  verdict,  by 
which  a  pleading  that  would  be  so  defective  as  to  render  it  bad  on  de- 
murrer will,  in  some  cases,  be  held  good  after  verdict,  was  a  well 
settled  common-law  rule  of  pleading.  u 

The  common-law  rule  has  not  been  changed  by  the  statute  which 
provides : 

"  Sec.  398.  The  court  must  in  every  stage  of  the  action  disregard 
any  error  or  defect  in  the  pleadings  or  proceedings  which  does  not 
affect  the  substantial  rights  of  the  adverse  party,  and  no  judgment  can 
be  reversed  or  affected  by  reason  of  such  error  or  defect."  v 

County  v.  Verborg.  63  Ind.  107 ;  Rout  46  Ind.  524  ;  Carter  v.  Zenblin,  68  Ind 

v.   Woods,    67   Ind.   319;     Pomeroy's  436. 

Rem.,  §  577.  (u)  Stephen  PI.,  9  Am.  ed.,  p.  148, 

(s)  Pomeroy's  Rem.,  JJ  577.  and  cases  cited ;  Chitty's  PI.  712 

(t)  Trisler  v.  Trisler,  38  Ind.  282;  Gould's  PI.,  chap.  10,  ??  11,  12. 

Estep  v.  Burke,  19  Ind.  87;  Teter  v.  (v)  R.  S.  1881,  §  398;  Ibid.,  §  658. 

Hinders,  19  Ind.  93 ;  Owen  v.  Cooper, 


XIV.]  DEMURRER.  347 

Under  this  statute  it  is  held  by  the  supreme  court  that  the  most 
liberal  form  of  intendment  after  verdict  should  be  maintained. w 

At  common  law  the  question  of  the  effect  of  the  verdict  on  a  de- 
fective pleading  arose  on  motion  in  arrest  of  judgment.  Under  the 
code  it  may  arise  on  motion  in  arrest  of  judgment,  and  on  assignment 
of  error  in  the  supreme  court  that  the  complaint  does  not  state  facts 
sufficient. 

533-  What  defects  cured  by  verdict. — There  can  be  no  definite 
rule  laid  down  by  which  to  determine  what  defects  will  be  cured  by 
verdict.  This  has  been  attempted  in  many  cases,  but  it  is  difficult  iu 
any  given  case  to  determine  whether  the  facts  defectively  stated  fall 
within  the  rule.  Mr.  Stephen,  in  his  work  on  Pleading,  quoting  from 
an  English  case,  says :  "  The  extent  and  principle  of  this  rule  of  alder 
by  verdict  is  thus  explained  in  a  modern  decision  of  the  Court  of  King's 
Bench.  Where  a  matter  is  so  essentially  necessary  to  be  proved  that 
had  it  not  been  given  in  evidence  the  jury  could  not  have  given  such 
a  verdict  there,  the  want  of  stating  that  matter  in  express  terms  in  a 
declaration,  provided  it  contains  terms  sufficiently  general  to  compre- 
hend it  in  fair  and  reasonable  intendment,  will  be  cured  by  verdict ; 
and  where  a  general  allegation  must,  in  fair  construction,  so  far  require 
to  be  restricted  that  no  judge  and  no  jury  could  have  properly  treated 
it  in  an  unrestrained  sense,  it  may  reasonably  be  presumed  after  ver- 
dict that  it  was  so  restrained  at  the  trial."  x 

(w)  Newman  ».  Perrill,  73  Ind.  154;  295;  Parker  v.  Clayton,  72  Ind.  307; 

The     Indianapolis,     Pittsburgh     and  Charlestovvn  School  Township  v.  Hay, 

Cleveland  R.  R.  Co.  v.  Petty,  30  Ind.  74  Ind.  127. 

261;    Westfall  v.  Stark,  24  Ind.  377;  (x)  Stephen  PI.  148,  citing  Jackson 

Tomlinson  v.  Hamilton,  27  Ind.  139;  v.  Pesked,  1  M.  &  S.  234;  1  Saund.  228, 

Vawter  v.  The  Ohio  and  Mississippi  R.  note  1 ;  Smith  v.  Cleveland,  6  Met.  :>:-J2, 

R.  Co.,  14  Ind.  174;  Howorth  ?\  Scarce,  334;    Ward  v.  Bartholomew,  6   Pick. 

29  Ind.  278;  Gander  v.  The  State,  50  408,  413;  Wilson  v.  Coffin,  2  Gush.  316, 

Ind.  539;    Eigenmann    v.   Backof,   56  324;  Emmens  v.  Elderton,  4  House  of 

Ind.  594;  Peck  v.  Martin,  17  Ind.  115;  Lords  Cases,  624;  Harris  v.  Goodwin, 

Wiles  v.  Lambert,  66  Ind.  494;  Galvin  2  M.  &  G.  405;  2  Scott  N.  R.  459,  and 

v.  Woolen,  66  Ind.  464;  Smith  v.  Free-  9  Dowl.  409 ;  Thomas  v.  Fredericks,  10 

man,  71  Ind.  85;   Donnellan  v.  Hardy,  Q.  B.  775;  Bain  v.  Clark,    10  Johns. 

57  Ind.  393;  Taylor  v.  Short,  40  Ind.  424;  Harrison  v.  Mclntosh,    1  Johns. 

506;    Wilson   v.  Kelley,  58  Ind.  586;  380;   Bartlett  v.  Crosier,  17  Johns.  458; 

Shaw    v.    The     Merchants'     National  Shaw   v.   Redmond,    11   S.   &   R.   27; 

Bank,   60   Ind.  83;    Hostetter  v.  The  Rushton  v.  Aspinwall,  1  Doug.  679;   1 

State,  62  Ind.  183;  McMakin  v.  Wes-  Smith's   Lead.  Cases,  926,  6  Am.  ed., 

ton,  64   Ind.  270;   The   Indianapolis,  and   notes.     See   also   Smock  v.  Har- 

etc,  R.  R.  Co.  v.  McCafferty,  72  Ind.  rison,  74  Ind.  348;  Home  Ins.  Co.  v. 

Duke,  75  Ind.  535. 


348  DEMURRER.  [CHAP. 

Mr.  Chitty  thus  states  the  rule:  "The  doctrine  upon  this  subject 
is  founded  upon  the  common  law,  and  is  independent  of  any  statutory 
enactment.  The  general  principle  upon  which  it  depends  appears  to 
be,  that  where  there  is  any  defect,  imperfection,  or  omission  in  any 
pleading,  whether  in  substance  or  form,  which  would  have  been  a  fatal 
objection  upon  demurrer;  yet  if  the  issue  joined  be  such  as  necessarily 
required,  on  the  trial,  proof  of  the  facts  so  defectively  or  imperfectly 
stated  or  omitted,  and  without  which  it  is  not  to  be  presumed  that 
either  the  judge  would  direct  the  jury  to  give,  or  the  jury  would  have 
given  the  verdict,  such  defect,  imperfection,  or  omission  is  cured  by 
the  verdict. "y 

A  clear  distinction  has  been  made,  in  applying  the  rule,  between  a 
cause  of  action  imperfectly  stated  and  the  failure  to  state  a  cause  of 
action.  The  effect  of  the  rule,  at  common  law,  was  not  to  supply  the 
omission  of  an  allegation  of  a  fact  necessary  to  show  a  cause  of  ac- 
tion, but  to  aid,  by  presumption,  a  defective  or  imperfect  statement  of 
a  material  fact.2 

With  this  construction  of  the  rule  there  is  little  room  for  the  doc- 
trine of  intendment  after  verdict  under  our  code.  The  defects  that 
were  cured  by  verdict  at  common  law  are  not  cause  for  demurrer  under 
the  statute.  The  fact  that  a  cause  of  action  is  imperfectly  or  de- 
fectively stated  is  not  cause  for  demurrer,  but  must  be  reached  by 
motion.* 

It  will  be  noticed  that,  in  some  of  the  decided  cases  in  Indiana,  the 
pleading  is  said  to  be  cured  by  verdict  when  it  would  not  be  subject  to 
demurrer. b 

In  these  cases  no  distinction  seems  to  be  recognized  between  such 
defects  in  a  pleading  as  can  not  be  reached  by  demurrer,  and  do  not 
need  the  aid  of  the  verdict,  and  those  which  are  cause  for  demurrer, 
and  may  be  thus  aided.  Indeed,  it  is  difficult  to  see  how  a  pleading 
subject  to  demurrer  on  the  ground  that  it  does  not  state  facts  sufficient 
to  constitute  a -cause  of  action,  can  be  cured  by  verdict  under  the  stat- 
ute. It  must  be  subject  to  demurrer  on  the  ground  that  it  does  not 
state  a  cause  of  action.  It  is  uniformly  held  that  this  defect  is  not 
waived  by  a  failure  to  demur,  and  that  the  question  may  be  raised  for 
the  first  time  by  an  assignment  of  error  in  the  supreme  court.  Not- 

(y)  1  Chitty's  PI.  712;  Gould's  PI.,  Irvin    v.    Bull,   28    Am.    Dec.    708   (4 

chap.  10,  §  11  et  seq.;   Bliss'  Code  PI.,  Watts,  287). 

§438.  (a)   Ante,  §491  et  seq. ;  Pom.  Rem., 

(z)  Newman  v.  Perrill,  73  Ind.  133;  §§  548,  549,  550,  and  notes. 

Bliss'    Code   PI.,   §   438;    Anderson  v.  (b)  Donnellon    v.    Hardy,   57    Ind. 

Reed,  5  Am.  Dec.  661  (2  Overton,  205) ;  393;  Smith  v.  Freeman,  71  Ind.  85. 


XIV.]  DEMURRER.  349 

withstanding  the  express  statutory  provision  that  such  a  defect  is  not 
waived  by  a  failure  to  demur,  the  supreme  court  has  held  in  a  number 
of  cases  that  a  complaint  that  would  have  been  bad  on  demurrer  on 
the  ground  that  it  did  not  state  facts  sufficient,  will  be  held  good  under 
an  assignment  of  error  or  motion  in  arrest  of  judgment.  Thus,  in  case 
of  a  failure  to  file  with  the  complaint  a  copy  of  the  written  instrument 
which  is  the  foundation  of  the  action,  it  is  held  in  a  long  line  of  decis- 
ions that  the  pleading  is  bad  on  demurrer  for  the  want  of  sufficient 
facts.  In  other  words  such  a  complaint  does  not  state  a  cause  of  ac- 
tion.0 But  the  supreme  court  holds  that  the  failure  to  file  the  written 
instrument  is  cured  by  verdict.*1 

Again,  it  is  held  that  in  an  action  on  a  note,  the  complaint  must  al- 
lege that  the  note  is  unpaid  or  it  will  be  bad  on  demurrer.6 

This  is  upon  the  ground  that  the  allegation  that  the  note  is  unpaid 
is  material,  and  the  objection  goes  to  the  substance  of  the  pleading. 
Yet  the  supreme  court  holds  that  the  failure  to  allege  that  the  note  is 
unpaid  is  cured  by  verdict/ 

It  will  thus  be  seen  that  our  supreme  court  has  not  only  construed 
the  common-law  doctrine  of  intendment  after  verdict  liberally,  but  has 
gone  beyond  the  rule  in  holding  that  the  omission  of  a  material  aver- 
ment may  be  cured  by  verdict.8 

But  where  a  demurrer  to  a  pleading  has  been  erroneously  overruled 
the  pleading  is  not  aided  by  section  659  of  the  code.h 

534.  By  answer. — A  defective  complaint  may  be  cured  by  the  al- 
legations of  the  answer.  Thus  it  has  been  held  that  where,  in  the 
complaint,  the  initials  only  of  the  plaintiff's  Christian  name  were  given, 
the  complaint  would  have  been  bad  on  demurrer,  but  the  defendant 
having  given  the  full  name  in  the  answer  the  defect  was  cured.' 

And  where  a  defective  description  is  given  in  the  complaint,  the  de- 
fect is  cured  by  a  correct  description  in  the  answer.J 

The  rule  is  not  confined  to  formal  defects. 

(c)  Ante,  §  415  et  seq.  Charlestown  School  Township  v  Hay, 

(d)  Westfall  v.  Stark,  24  Ind.  377;     74  Ind.  127. 

Eigenmann  v.  Backof,  50  Ind.  594;  Gal-  (h)  Johnston  v.  Breedlove,  72  Ind. 

vin  v.  Woollen,  66  Ind.  4(54.  3G8,    372;    Sinker,    Davis    &    Co.    v. 

(e)  Lawson  v.  Sherry,  21  Ind.  303;  Fletcher,  61    Ind.  276;    Utica   Town- 
Pace  v.  Grove,  2(5  Ind.  26;    Green  v.  ship  v.  Miller,  62  Ind.  230;  Friddle  v. 
Louthain,  49  Ind.  139.  Crane,  63  Ind.  583. 

(f)  Howorth  v.  Scarce,  ?9  Ind.  278.  (i)  Sherrod  v.  Shirley,  57  Ind.  M. 

(g)  Parker  v. 'Clayton,  72  Ind.  307;  (j)   Wiles  v.  Lambert,  66  Ifid.  41)4. 


350  DEMURRER.  [CHAP. 

Substantial  averments  omitted  in  the  complaint  may  be  supplied  by 
the  answer. k 

Under  the  peculiar  system  of  pleading  recognized  in  this  state,  by 
which  a  defendant  is  permitted  to  set  up  different  defenses  that  are  en- 
tirely inconsistent,  the  question  whether  an  allegation  in  one  paragraph 
that  supplies  an  omission  in  the  complaint  should  be  held  sufficient 
to  render  the  complaint  good  where  the  same  fact  is  expressly  denied, 
controverted,  or  not  admitted  in  another,  is  open  to  question.  The 
ground  upon  which  the  omitted  allegation  is  held  to  be  unnecessary  in 
the  complaint  is  that  it  is  admitted  in  the  answer.  Can  the  admission 
in  one  paragraph  have  this  effect  when  it  is  denied  or  not  admitted  in 
another. 

So  far  as  I  know,  this  question  has  not  been  passed  upon  by  the 
supreme  court.  It  is  believed,  hoAvever,  that  an  allegation  in  one  para- 
graph of  answer  could  not  have  the  effect  to  render  the  complaint 
sufficient  under  such  circumstances  as  against  a  defense  set  up  in  another 
paragraph. 

535.  By  statute. — In  addition  to  the  common-law  intendment 
after  verdict,  statutes  have  been  passed  in  most,  if  not  all  of  the  states, 
in  aid  of  defective  pleadings.1 

Such  statutes  were  passed  also  in  England,  and  are  commonly  known 
as  the  statutes  of  Jeofails.  The  statutes  of  Jeofails  and  amendments 
cured  only  formal  defects,  and  not  such  as  went  to  the  substance  of  the 
pleading."1 

In  this  state  we  have  the  following  statute : 

"Sec.  658.  No  judgment  shall  be  stayed  or  reversed,  in  whole  or 
in  part,  by  the  supreme  court,  for  any  defect  in  form,  variance  or  im- 
perfections contained  in  the  record,  pleadings,  process,  entries,  returns,  or 
other  proceedings  therein,  which,  by  law,  might  be  amended  by  the  court 
below,  but  such  defects  shall  be  deemed  to  be  amended  in  the  supreme 
court ;  nor  shall  any  judgment  be  stayed  or  reversed,  in  whole  or  in  part, 
where  it  shall  appear  to  the  court  that  the  merits  of  the  cause  have 
been  fairly  tried  and  determined  in  the  court  below."" 

It  will  be  seen  that  the  statute  is  confined,  as  far  as  the  pleadings 
are  concerned,  to  any  "defect  inform,  variance,  or  imperfections,  ?r/«W. 
by  law  might  be  amended  by  the  court  below." 

(k)  Watkins  v.  Gregory,  6  Blkf.  113;         (1)  Bliss'  Code  PI.,  ?  440. 
Wilson  v.  Markle,  6  Blkf.  118;   Bliss'         (m)  Stephen  PI.  97. 
Code  PI.,  §  437;  Birely's  Ex'rs  v.  Sta-         (n)  R.  S.  1881,  §  658. 
ley,  2f  Am.  Dec.  303^  308  (5  Gill.  & 
Johnson,  432). 


XIV.J  DEMURREK.  351 

If  the  statute  were  confined  to  matters  of  form  merely,  as  was  clearly 
the  intention,  it  could  not  cure  a  pleading  bad  on  demurrer,  as  under 
the  code  defects  in  matter  of  form  are  not  cause  for  demurrer.  There 
are,  however,  two  clauses  in  the  section  that  must  be  considered.  The 
latter  clause  is  more  general  in  its  terms.  It  is  that  no  cause  shall  be 
stayed  or  reversed  where  the  "  merits,  of  tlie  cause  have  been  fairly  tried 
and  determined  in  the  court  below." 

This  clause  should  not  be  construed  to  affect  the  pleadings.  It  evi- 
clently  applies  to  the  trial.  The  merits  of  a  cause  might  be  fairly  tried 
without  any  pleading,  or  with  a  complaint,  answer  or  reply  clearly  bad 
on  demurrer.  To  apply  this  provision  to  the  pleadings  and  give  it  its 
full  meaning,  would  be  to  cure  the  defects  in  any  pleading,  no  matter 
how  radical  they  might  be,  where  the  merits  of  the  cause  appeared  to 
have  been  fairly  tried.  Yet  this  part  of  the  section  has  sometimes 
been  called  in  aid  of  a  defective  pleading  by  the  supreme  court.0 

Section  398  of  the  statute  bears  upon  this  same  question.  It 
provides : 

"The  court  must  in  every  stage  of  the  action  disregard  any  error  or 
defect  in  the  pleadings  or  proceedings  which  does  not  affect  the  sub- 
stantial rights  of  the  adverse  party,  and  no  judgment  can  be  reversed 
or  affected  by  reason  of  such  error  or  defect."  p 

This  section,  like  the  others,  should  be  confined  to  formal  defects. 

In  the  decided  cases  the  supreme  court  have  considered  these  two 
sectipns  of  the  statute  and  the  effect  of  verdict  on  the  pleadings  to- 
gether, and  it  is  sometimes  difficult  to  determine  whether  the  statute  or 
the  verdict  is  regarded  as  curing  the  defect. 

That  section  658  reaches  only  defects  in  form,  has  been  decided  by 
the  supreme  court. q 

It  is  held  that,  under  this  section  and  section  398,  the  supreme  court 
will  not  reverse  a  case  on  account  of  "  any  error  or  defect  in  the  plead- 
ings which  does  not  affect  the  substantial  rights  of  the  party  com- 
plaining.1"" 

But  an  examination  of  the  authorities  will  show  that  the  statute 
is  given  a  very  broad  construction,  applying  it  to  defects  that  would, 
under  the  code,  be  cause  for  demurrer,  which  must  be  a  substantial  de- 
fect. The  authorities  cited,  in  considering  defects  cured  by  verdict, 
bear  upon  this  question.8 

(o)  "Wiles  T>.  Lambert,  6G  Ind.  494;  genmann  v.  Backof,  56  Ind.  594;  Lam- 
Scott  v.  Zartman,  61  Ind.  328.  son  v.  Falls,  6  Ind.  309  ;  Wiles  v.  Lam- 
(p)  R.  S.  1881,  §  398  bert,  66  Ind.  494;  Scott  v.  Zartman,  61 
(q)  Veach  v.  Pierce,  G  Ind.  48.  Ind.  328. 
(r)  Hedge  v  Sims,  29  Ind.  574;  Ei-  (s)   Ante,  §532. 


352  DEMURRER.  [CHAP. 

The  question,  as  to  what  defects  might  be  amended  by  the  court  be- 
low, is  considered  in  the  chapter  on  amendments.' 

It  is  impossible  to  lay  down  any  general  rule  by  which  to  determine 
whether  a  defect  falls  within  either  of  these  sections  of  the/  statute  or 
not.  The  authorities  furnish  no  such  rule.  Each  case  must  neces- 
sarily depend  upon  the  condition  of  the  pleadings  in  that  case,  and  the 
view  of  the  court  as  to  whether  the  defect  is  one  that  substantially 
affects  the  complaining  party  or  not. 

536.  By  award. — In  respect  to  the  effect  upon  the  defective  plead- 
ing an  award  is  held  to  be  the  same  as  a  verdict.     The  same  defect 
that  would  be  cured  by  verdict,  it  has  been  held,  is  cured  by  an  award 
in  the  plaintiff's  favor." 

WHEN   RULING   ON   DEMURRER   HARMLESS. 

537.  Demurrer  sustained  to  good  paragraph. — Out  of  these 
same  statutory  provisions  grows  the  doctrine  that  a  ruling  on  demur- 
rur,  although  erroneous,  will  not  reverse  the  cause  if  the  ruling  does 
not  .affect  the  substantial  rights  of  the  complaining  party.      Thus, 
where  a  demurrer  is  sustained  to  a  good  paragraph  of  pleading,  but  the 
same  facts  can  be  proved  under  another  paragraph  not  demurred  to,  or 
to  which  a  demurrer  has  been  overruled,  no  injury  can  result  to  the 
party  and  the  ruling  will  be  harmless/ 

538.  Overruled    to    bad   paragraph. — Where    a   demurrer   is 
erroneously  overruled  to  a  bad  paragraph  the  ruling  may  or  may  not 
be   harmless.     If  the  finding   and  judgment  of  the  court  are  based 
solely  on  other  paragraphs  of  the  pleading,  that  are  good,  or  where  the 
finding  on  the  paragraph  to  which  the  demurrer  was  overruled,  is  for 
the  plaintiff  and  against  the  defendant,  the  ruling  is  harmless." 

But  where  there  is  nothing  in  the  record  to  show  that  the  finding 

(t)  Post,  §  694  et  seq.  v.  Wray,  32  Ind.  120;  Patterson  v. 

(u)  Dickerson  v.  Hays,  4  Blkf.  44.  Lord,  47  Ind.  203;  Smith  v.  Denman, 

(v)  Fuller  r.  Wright,  59  -Ind.  333;  48  Ind.  65;  The  Pittsburgh,  etc.,  R.  R. 

Porter  v.  Silvers,  35  Ind.  295;  Wilson  Co.  v.  Van  Houten,  48  Ind.  90;  Fisher 

r.  Root,  43  Ind.  486;  The  Aurora  Fire  v.   Hamilton,  48  Ind.  239;    McGee    r. 

Ins.  Co.  t).  Johnson,  46  Ind.  315;   Em-  Kobhins,  58  Ind.  463;  Trogden  v.  De- 

mens  v.  Meeker,  55  Ind.  321;  Martin  card,  45  Ind.  572. 

r.  Merritt,  57  Ind.  34;  Wolf  v.  Scho-  ^w)   Blessing  r.  Blair,  45  Ind.  546; 

field,    38   Ind.    175;    The    Evansville,  Keegan    r.    Carpenter,    47    Ind.    597; 

etc..  R.  R.  Co.  v.  Baum,    26  Ind.  70;  Blassingame   v.   Blassingame,  24    Ind. 

Rhode  v.  Green,  26  Ind.  83;  Tomlin-  86;  Hawley  v.  Smith,  45  Ind.  183. 

son  v.  Hamilton,  27  Ind.  139;  Wray 


XIV.]  DEMURRER.  353 

was  exclusively  upon  the  good  paragraph,  the  supreme  court  will  re- 
verse the  case.1 


WHEN   DEMURRER   WAIVED. 


539.  By  pleading  over. — A  demurrer  must  be  interposed  at  the 
proper  time  or  it  id  waived.     There  can  be  no  demurrer  after  pleading 
to  the  merits.     And  where  a  demurrer  is  pending  it  is  waived  by  filing 
an  answer  without  requiring  a  decision  on  the  demurrer.7 

540.  Can  not  plead  and  demur  at  same  time. — It  follows 
from  the  rule,  that  to  plead  to  the  merits  waives  a  demurrer  that  a 
party  can  not  plead  and  demur  to  the  same  paragraph  at  the  same 
time.2 

The  demurrer  in  such  case  is  waived.  But  a  party  may  at  the  same 
time  demur  to  one  paragraph  and  plead  to  another. 

541.  By  going  to  trial. — The  effect  of  going  to  trial  while  a  de- 
murrer is  pending  is  not  well  settled  by  authority.     If  no  demurrer 
has  been  filed,  the  right  to  demur  is  waived  by  going  to  trial. 

But  where  the  party  has  demurred  and  no  decision  has  been  rendered 
on  the  question  of  law  presented  by  the  demurrer,  it  is  a  question  of 
much  doubt  whether  the  demurrer  is  waived  by  going  to  trial.  In 
some  of  the  decided  cases  in  Indiana,  it  is  clearly  decided  that  the 
mere  fact  of  the  parties  going  to  trial  without  requiring  that  the  de- 
murrer shall  be  passed  upon  does  not  waive  the  demurrer,  and  that 
the  court  has  no  power  to  proceed  with  the  trial  with  the  question  of 
law  pending.* 

In  later  cases  the  rule  has  been  modified.1"  And  in  one  case  it  is  held 
unqualifiedly  that  by  going  to  trial  the  demurrring  party  waives  the 
demurrer.0 

(x)  Wolf  v.  Schofield,  38  Ind.  175;  ley  v.  Harkness,  2  Blkf.  34;  Hosier  v. 

Peery  v.  The  Greensburg,  etc.,  Turn-  Eliason,  14  Ind.  523;  Story's   Eq.  PL, 

pike  Co.,  43  Ind.  321;   Bailey  v.  Troxel,  §§462,463,465. 

43  Ind.  432;  Busk.  Prac.  186.  (a)  Gray    v.   Cooper,   5    Ind.   506; 

(y)  Beckner  v.  The   Riverside,  etc.,  Tam  v.  Shaw,  10  Ind.  469;  Anderson 

Turnpike  Co.,  65  Ind.  468;   Morrison  v.    Weaver,    17   Ind.   223;    Waldo  v. 

v.  Fisher,  64  Ind.  177;  Gordon  ».  Cul-  Richter,  17  Ind.  634  ;  Kegg  v.  Welden, 

bertson,  51  Ind.  334;   De  La  Hunt  v.  10  Ind.  550. 

Holderbaugh,    58   Ind    285;    Moss   v.  (b)   Haun   v.  Wilson,  28   Ind.  296; 

Witness   Printing   Co.,  64   Ind.   125;  Miles  v.  Buchanan,  36  Ind.  490. 

Hosier  v.  Eliason,  14  Ind.  523.  (c)  Irvinson  v.  Van  Riper,  34  Ind. 

(z)  Hair  v.  Weaver,  1  Elkf.  77;  Ri-  148. 
23 


354  DEMURRER.  [CHAP. 

In  thecabeof  [Tunny.  Wilson,  the  court  makes  a  distinction  between 
the  demurring  party  and  his  opponent  as  to  the  effect  of  going  to  trial. 
It  is  held  that  the  party  who  files  the  demurrer  must  see  that  it  is  sub- 
mitted and  passed  upon  before  proceeding  to  trial,  and  a  failure  to  do 
so  on  his  part  waives  the  demurrer. 

542.  Effect  of  adjudicated  cases. — In  most  of  the  cases  cited  it 
is  difficult  to  determine  Avhether  the  going  to  trial  is  held  to  waive  the 
demurrer,  or  the   failure  to  make  the  proper  objection  in  the  lower 
couFt  waives  the  error  of  going  to  trial  without  disposing  of  the  issue 
of  law.     In  most,  if  not  all  of  the  cases,  the  question  was  not  pre- 
sented to  the  court  below  in  any  form,  and  none  of  the  cases  seem  to 
be  clear  as  to  the  manner  in  which  it  should  have  been  presented.     In 
the  case  of  Haun  v.  Wilson,  the  court  say:     "The  objection  might 
have  been  taken  in  the  case  under  consideration  by  motion  in  arrest  of 
judgment,  which  lies  for  any  matter  intrinsic  appearing  upon  the  face 
of  the  record  amounting  to  a  defect  not  amendable,  or  aided  at  com- 
mon law  or  by  statute,  and  for  which  a  writ  of  error  at  common  law 
would  lie."d 

In  the  same  case  it  is  assumed  that  the  question  might  have  been 
presented  by  motion  for  a  new  trial.  And  so  it  is  in  other  cases.6 

In  one  case  the  cause  was  reversed  for  error  of  the  court  in  going  to 
trial  before  disposing  of  the  demurrer,  and  the  question  was  presented 
by  a  motion  for  a  new  trial,  assigning  this  as  one  of  the  causes/ 

If  the  question  can  be  presented  either  by  a  motion  in  arrest  or  for 
a  new  trial,  the  party  does  not  waive  his  demurrer  by  going  to  trial, 
and  this  is  the  effect  of  the  great  weight  of  the  authorities.  He  may 
go  to  trial  without  objection  and  then  move  in  arrest,  or  for  a  new  trial, 
because  the  court  proceeded  to  trial  without  disposing  of  the  demurrer. 
It  is  true  that  the  error  assigned  as  cause  for  arresting  the  judgment, 
or  for  a  new  trial,  is  a  new  one  not  arising  upon  the  demurrer,  but  if 
the  party  waived  his  demurrer  by  going  to  trial  no  such  error  could 
arise. 

543.  "When  court  presumed  to  have  passed  upon  demur- 
rer.— Where  the  cause  is  tried  by  the  court  it  will  be  presumed  in  the 
supreme  court  that  in  passing  upon  the  question  of  fact  the  court  has 
also  decided  the  question  of  law  presented  by  the  demurrer.     But 
where  the  cause  is  tried  by  a  jury  no  such  presumption  can  arise.g 

(d)  Haun   v.  Wilson,   28   Ind.  296,         (f)  Anderson   v.   Weaver,   17   Ind. 
305.  223. 

(e)  Miles  v.  Buchanan,  36  Ind.  490.          (g)  Hosier  v.  Eliason,  14  Ind.  523? 

Anderson  r.  Weaver.  17  Ind.  223. 


XIV.]  DEMURRER.  355 

544.  Effect  of  "waiver.  —  A  party  may  waive  his  right  to  demur. 
If  the  objection  is  one  that  is  waived  by  a  failure  to  demur  the  waiver 
of  the  demurrer  waives  the  defect,  but  where  the  defect  is  not  waived 
by  failure  to  demur,  the  neglect  to  demur  only  postpones  the  right  to 
raise  the  objection  to  a  later  stage  of  the  case  by  motion  in  arrest  or 
assignment  of  error  in  the  supreme  court. 

DEMURRER   IN   PARTICULAR   CASES. 

545.  Petition  for  highway.  —  There  are  a  few  special  cases  in  which 
it  has  been  doubted  whether  a  demurrer  will  lie  or  the  manner  of  de- 
murring is  unusual  that  deserve   particular  consideration.    In  proceed- 
ings to  open  or  vacate  public  highways  the  practice  is  not  provided  for 
by  statute,  and  the  adjudicated  cases  are  numerous  and  conflicting. 
One  of  the  questions  has  been  whether  the  practice  in  such  cases  allows 
of  a  regular  course  of  pleading  as  in  ordinary  civil  cases.     Whatever 
may  be  the  effect  of  the  decisions  on  other  points  of  practice,  it  is  well 
settled  that  the  sufficiency  of  the  petition  may  be  tested  by  demurrer 
as  complaints  in  other  cases.11 

546.  Mandate.  —  In  mandamus  the  writ  of  mandate  is  the  plain- 
tiff's complaint^and  the  return  to  the  writ  is  the  answer.     Therefore, 
a  demurrer  lies  to  the  writ  as  to  the  complaint,  and  to  the  return  as  to 
the  answer.' 

But  the  affidavit  and  motion  may  be  looked  to  in  aid  of  the  writ.J 

547.  Proceedings  supplementary  to  execution.  —  In  this  pro- 
ceeding the  affidavit  filed  on  behalf  of  the  judgment  debtor  is  in  the 
nature  of  a  complaint,  and  may  be  tested  by  demurrer.  k 

DEMURRER    TO    EVIDENCE. 

548.  Its   form.  —  Demurrer  to   the  evidence  was  a  common-law 
pleading  that  was  regarded  as  analogous  to  a  demurrer  to  a  pleading.1 

The  old  practice  was  for  the  court  to  order  a  note  of  the  evidence  to 
be  taken  which  was  signed  by  counsel  on  both  sides,  and  the  demurrer 
was  affixed  to 


(h)  Vandever  v.  Garshwiler,  63  Ind.  Legal  Kem.,  gg  449,  451,  457;  Potts  v. 

185,  191.  The  State,  75  Ind.  336;  post,  g  546. 

(i)  K.  S.  1881,  g  1171  ;  The  Board  of  (j)  Gill  v.  The  State,  72  Ind.  266; 

Commissioners   of    Clark   Co.   v.  The  Potts  v.  The  State,  75  Ind.  336;  post, 

State,  61  Ind.  75;  The  Board  of  Com-  g  546. 

missioners  v.  The  State,  61  Ind.  379;  (k)  R.  S.  1881,  g  822. 

Johnson  v.  Smith,  64  Ind.  275;  Smith  (1)  Stephen  PI.,  p.  89. 

v.  Johnson,  69    Ind.  55;  High's   Ext.  (m)  Lindley  v.  Kelley,  42  Ind.  294. 


356  DEMURRER.  [CHAP. 

The  right  to  demur  is  recognized  under  the  code,  but  the  party  must 
set  out  the  evidence  fully  in  his  demurrer." 

549.  What  demurrer  admits. — As  a  rule  there  is  nothing  to  be 
gained  by  a  demurrer  to  the  evidence.     So  much  is  admitted  by  the 
demurrer  that,  where  it  will  be  sustained,  the  cause  should  be  reversed 
on  the  ground  that  the  evidence  is  not  sufficient  to  sustain  the  verdict 
of  the  jury. 

It  is  held  that  the  legal  effect  of  a  demurrer  to  the  evidence  is,  that 
all  the  facts  of  which  there  is  any  evidence,  and  all  conclusions  which 
could  fairly  and  logically  be  deduced  from  those  facts,  are  admitted.0 

550.  Waives  objection  to  admissibility  of  evidence. — If 
there  is  any  question  as  to  the  admissibility  of  any  of  the  evidence  ad- 
mitted on  the  trial  that  the  party  desires  to  present  in  the  supreme 
court,  he  should  not  demur  to  the  evidence,  as  the  demurrer  waives  all 
objections  to  the  admissibility  of  evidence. p 

551.  Joinder  in  demurrer. — It  has  been  held,  that  where  the 
evidence  was  properly  set  out  in  the  demurrer,  the  opposite  party  might 
be  compelled  to  join  in  the  demurrer.q 

But  it  is  now  well  settled,  by  authority,  that  whila  the  party  may 
join  in  the  demurrer,  it  is  unnecessary.1 

552.  What  joinder  admits. — By  joining  in  demurrer  a  party 
admits  that  the  evidence  is  properly  and  fully  set  out.8 

Therefore,  if  there  is  any  doubt  whether  the  evidence  is  properly  set 
out  in  the  demurrer,  the  party  should  refuse  to  join,  and  move  the 
court  to  require  the  party  demurring  to  set  out  such  evidence  as  is  sup- 
posed to  be  omitted. 

In  Lindley  v.  Kelley,  in  which  the  practice  is  fully  considered,  the 
court  say:  "  By  a  joinder  in  demurrer  the  party  admits  that  the  evi- 

(n)  Griggs   v.   Seeley,    8   Ind.  264;  Fike,  2  Blkf.  374;  The  City  of  Indian- 

Lindley  w.  Kelley,  42  Ind.  294;  Strough  apolis  v.  Lawyer,  38  Ind.  348;   Busk. 

v.  Gear,  48  Ind.  100.  Prac.  196  et  seq.;  The  O.  &  M.  R.  R. 

(o)  Peabody    v.    Peabody,   59    Ind.  Co.  v.  Collam,  73  Ind.  261. 
556;  Strough   v.   Gear,   48    Ind.    100;         (p)  Miller  v.  Porter.  71  Ind.  521. 
Bailey  v.  Boyd,  59  Ind.  292;  Atherton         (q)   McCreary  r.  Fike,  2  Blkf.  874. 
v.  The  Sugar  Creek,  etc.,  Turnpike  Co.,         (r)  Lindley  v.  Kelley,  42  Ind.  294; 

67  Ind.  334;    Pinnell   v.  Stringer,   59  Busk.  Prac.  202. 

Ind.  555;  Eagan  v.  Downing,  55  Ind.         (s)  Lindley  v.  Kelley,  42  Ind.  294; 

65;  The  Indianapolis,  etc.,  R.  W.  Co.  Busk.  Prac.  202. 
v.  Goar,   62   Ind.  411;    McCreary  v. 


XIV.]  DEMURRER.  357 

dence  is  properly  set  out.  If  the  party  offering  the  evidence  is  of  the 
opinion  that  the  evidence  is  not  fully  and  correctly  set  out  he  should 
refuse  to  join  in  demurrer,  but  should  pray  the  judgment  of  the  court, 
that  his  adversary  may  not  be  admitted  to  his  demurrer  until  the  evi- 
dence is  fully  and  correctly  set  forth ;  and  he  should  show  to  the  court 
wherein  the  evidence  is  not  fully  and  correctly  set  forth." 


358 


ANSWER. 


[CHAP. 


CHAPTER    XV. 


SECTION. 

553.  Scope  of  the  chapter. 

554.  Eule  to  answer. 


ANSWER.  (1) 

SECTION. 


ANSWER  IN   BAR. 

577.  The  statute. 


DISCLAIMER. 

555.  Nature  and  effect  of. 

656.  When  party  may  disclaim. 

557.  May   disclaim   part   and   answer 

part  of  complaint. 

558.  Interpleader. 

ABATEMENT. 

559.  Nature  of  the  defense. 

560.  Must  precede  pleas  in  bar. 

561.  Must  be  specially  pleaded. 

562.  Must  be  verified. 

WHAT    MAY    BE    PLEADED    IN   ABATE- 
MENT. 

563.  Want  of  jurisdiction  of  the  per- 

son. 

564.  Want  of  capacity  to  sue. 

565.  Non-joinder  of  necessary  parlies. 

666.  Must  show  that  omitted  defendant 

is  still  living. 

667.  Another  action  pending. 

568.  Can   attachment   proceedings   be 

pleaded  in  abatement? 

569.  Misnomer. 

570.  Actions  prematurely  brought. 

571.  Death  of  party. 

572.  In  attachment  proceedings. 

:O"W   MATTERS   IN    ABATEMENT 
WAIVED. 

573.  By  failure  to  demur. 

574.  By  pleading  to  the  merits. 

575.  By  going  to  trial  on  the  merits. 

576.  Answers    in    abatement    strictly 

onstruedo 


THE   GENERAL   DENIAL. 

578.  Object  and  form. 

579.  What  may  be  proved  under. 

580.  Mitigation  of  damages. 

581.  In  actions  to   recover  real  estate 

and  to  quiet  title. 

WHAT   THE   GENERAL   DENIAL  ADMITS. 

582.  Capacity  of  plaintiff  to  sue. 

583.  Execution  of  written  instrument. 

584.  Executors,     administrators,     and 

guardians  need  not  deny  execu- 
tion of  written  instrument,  un- 
der oath. 

585.  Existence  of  corporation  plaintiff. 

NEW  MATTER — SPECIAL  ANSWER. 

586.  What  is  new  matter. 

MANNER    OF    STATEMENT. 

587.  Defenses     must     be     separately 

pleaded  and  numbered. 

588.  Answer  may  go  to  part  of  a  para- 

graph of  complaint. 

589.  May  confess  and  avoid  a  part  and 

deny  a  part  of  complaint  in 
same  paragraph. 

590.  Answer  must  state  facts. 

591.  Defenses  may  be  inconsistent. 

592.  Each    paragraph   must   be    good 

within  itself. 

593.  Equitable  defenses. 

WHAT   MUST   BE   PLEADED   SPECIALLY, 
AND    HOW   PLEADED. 

594.  Payment. 


(1)  For  forms  of  answers,  see  Vol.  3,  pp.  332-402. 


XV.] 


ANSWER. 


359 


595.  What  plea  of  payment  must  con- 

tain. 

596.  Payment  after  suit  brought. 

597.  Payment  of  less  than  is  due. 

598.  Accord  and  satisfaction. 

599.  Arbitration  and  award. 

600.  Want  of  consideration. 

601.  Who  may  plead  want  of  consid- 

eration. 

602.  Illegal  consideration. 

603.  Failure  of  consideration. 

604.  Partial  failure  of  consideration. 

605.  Former  adjudication. 

606.  Estoppel  in  pais. 

607.  Estoppel  against  married  women. 

608.  Release  of  surety;   failure  to  sue 

principal. 

609.  By  extending  time  to  principal. 

610.  By  alteration  of  the  contract 

611.  By  surrender  of  lien  on  property 

of  principal,  or  other  security 
held  by  creditor. 

612.  Release  of  indorser;  by  failure  to 

sue  maker. 

613.  Tender. 

614.  Effect  of  tender. 

615.  Tender  after  suit  brought. 

616.  Failure  of  plaintiff  to  tender  per- 

formance. 

617.  Usury. 

618.  Who  may  plead  usury. 


619.  Breach   of   covenant;    deed    the 

foundation  of  the  action. 

620.  Of  title  and  for  quiet  enjoyment. 

621.  What  will  amount  to  an  eviction. 

622.  Covenant  against  incumbrances. 

623.  Covenants   in    deeds   of   general 

warranty. 

624.  Covenants  of  married  women. 

625.  Discharge  in  bankruptcy. 

626.  Statute  of  limitations. 

627.  The  statute  of  frauds. 

628.  Fraud. 

629.  Adverse  possession  of  real  estate. 

630.  Release  or  other  discharge. 

ANSWERS  IN   LIBEL   AND   SLANDER. 

631.  Mitigation  of  damages. 

632.  Truth  of  the  words. 

633.  In  tort  generally. 

634.  What 'must  be  pleaded  specially 

by  executors  and  administrators. 
• 

ANSWERS   THAT   MUST   BE   VERIFIED. 

635.  Non  est  factum. 

636.  Non  est  factum,  by  executors  and 

administrators. 

637.  Answer   in    proceedings    supple- 

mentary to  execution. 

ANSWERS  PUIS  DARREIN   CONTINU- 
ANCE. 

638.  When  and  how  pleaded. 


553.  Scope    of  the    chapter. — The  statute   treats   set-off   and 
counterclaim  as  matter  that  may  be  set  up  by  way  of  answer.     As 
will  appear  hereafter,  a  set-off  may  be  more  than  a  defense,  and  a 
counterclaim  is  not  a  defense,  but  a  new  cause  of  action. 

This  chapter  will  be  confined  to  the  subject  of  answers  proper, 
leaving  the  consideration  of  set-off  and  counterclaim  for  a  subsequent 
chapter.* 

554.  Rule  to  answer. — Before  there  can  be  a  rule  to  answer,  the 
defendant  must  be  before  the  court  by  actual  appearance,  either  in  per- 
son or  by  attorney. 

And  unless  there  is  a  voluntary  appearance  to  the  action  there  can 


(a)  Post,  chap.  16. 


360  ANSWER.  [CHAP. 

be  neither  a  default  nor  a  rule  to  answer  until  the  second  day  of  the 
term.b 

Where  there  has  been  service,  the  defendant  may  be  called  on  the 
second  day  of  the  term. 

If  an  appearance  is  entered  he  should  be  ruled  to  answer.  The  rule 
is  usually  entered  on  the  second  day,  and  should  be  discharged  at  the 
next  calling  of  the  docket,  either  by  filing  some  motion,  demurrer,  or 
answer  to  the  complaint,  or  by  showing  some  reason  for  not  complying 
with  the  rule. 

The  time  in  which  a  party  is  allowed  to  plead  is  not  fixed  by  stat- 
ute. The  time  may  be  fixed  by  the  judge  of  the  court,  as  he  may 
deem  just.c 

It  is  provided,  by  statute,  that  where  the  defendant  fails  to  plead 
within  the  time  fixed,  the  court  shall  forthwith  enter  judgment  as  upon 
a  default." 

But  where  the  defendant  has  entered  an  appearance,  the  better 
practice  is  to  close  the-  rule  to  answer,  and  order  a  judgment  for  the 
want  of  an  answer. 

DI^CLAIMER.(l) 

555.  Nature  and  effect  of. — A  party  may  avoid  pleading  to  the 
complaint,  in  some  instances,  without  suffering  a  default.     If  the  action 
is  "  to  recover  possession  of  real  estate,  or  to  determine  conflicting 
claims  thereto,"  he  may  disclaim  any  interest  in  the  re'al  estate  by 
filing  what  is  termed  a  disclaimer. 

The  statute  provides  that  "if  in  such  cases  the  defendant  disclaim, 
in  his  answer,  any  interest  or  estate  in  the  property,  or  suffer  judg- 
ment to  be  taken  against  him  without  answer,  the  defendant  shall  re- 
cover costs.6 

While  the  statute  speaks  of  a  disclaimer  as  an  answer,  it  is  not  an 
answer  in  any  sense  of  the  term.  It  forms  no  issue  to  be  tried  ;  but 
simply  puts  the  defendant  out  of  court  without  further  proceedings, 
leaving  the  plaintiff  to  pay  the  costs. 

556.  "When  party  may  disclaim. — The  right  of  a  party  to  dis- 
claim is  recognized  by  the  code  only  in  actions  to  recover  real  estate  or 
determine  conflicting  claims  thereto ;  and  it  has  been  held  that  it  can 
only  be  done  by  a  party  not  in  possession/ 

(b)  Ante,  §  448;  Jelley  v.  Gaff,  56  PI.,  §§838,  838a;  MeCarnan  v.  Coch- 
Ind.  331.  ran,  57  Ind.  166. 

(c)  K.  S.  1881,  ?§  400,  405.  (f )  Kagan  r.  Haynes,  10  Ind.  348; 

(d)  R.  S.  1881,  \  401.  Choan  v.  Porter,  66  Ind.  194;  McCar- 

(e)  R.  S.  1881,   ?  1072;    Erskine   v.  nan  v.  Cochran,  57  Ind.  166. 
McCutchan,  9   Ind.  255;   Story's  Eq.  (1)  For  forms  of  disclaimer,  see  Vol. 

3,  p.  332. 


XV.]  ANSWER.  361 

If  the  defendant  is  in  possession,  or  the  complaint  seeks  affirma- 
tive relief  against  him,  he  can  not  avoid  liability  by  a  disclaimer.8 

Mr.  Story,  in  his  work  on  Equity  Pleading,  says:  "Indeed  it  may 
be  laid  down  as  a  general  rule,  that  in  no  case  can  a  party  get  rid  of 
his  liability  to  answer  a  suit  by  a  mere  disclaimer  if  his  answer  may 
properly,  under  all  the  circumstances,  be  required.  Thus,  for  exam- 
ple, if  his  disclaimer  does  not  show  that  he  is  under  no  liability  in 
respect  to  the  matters  of  the  bill  it  will  be  bad.  So  if  the  bill 
alleges  some  other  facts,  as  that  the  defendant  has  mixed  himself  up 
with  the  whole  transaction,  and  has  by  his  personal  conduct,  made  it 
necessary  that  the  bill  should  be  filed,  a  mere  disclaimer  will  not  enti- 
tle him  to  be  dismissed  from  further  answering  the  suit ;  for,  under 
such  circumstances,  justice  might  not  be  done  to  the  other  party. 
Generally  speaking,  therefore,  a  mere  disclaimer  is  scarcely  to  be 
deemed  sufficient  or  proper,  except  where  the  bill  simply  alleges  that 
the  defendant  claims  an  interest  in  the  property  in  dispute,  without 
more  ;  for,  under  such  circumstances,  if  he  claims  no  interest,  that  is 
a  sufficient  answer  to  the  allegation."  h 

557.  May  disclaim  part  and  answer  part  of  complaint. — 
The  practice,  under  the  code,  authorizes  a  party  to  demur  to  part 

of  a  pleading  and  answer  a  part.  The  plaintiff  having  the  right  to 
join  several  causes  of  action  in  the  same  complaint,  in  separate  para- 
graphs, the  defendant  may  disclaim  as  to  one  paragraph  and  answer 
as  to  another.' 

And  where  the  plaintiff  sets  out  different  tracts  of  land  in  the  same 
paragraph  of  complaint,  alleging  that  the  defendant  claims  some  in- 
terest therein,  he  may  disclaim  as  to  one  tract  and  demur  or  answer  as 
to  another. 

558.  Interpleader. — Where  the  defendant  admits  his  liability  in 
an  action  upon  a  contract  or  for  specific  real  or  personal  property,  he 
may,  where  a  third  party  is  claiming  the  same  debt  or  property,  avoid 
answering,  as  well  as  any  further  cost,  by  an  affidavit  for  interpleader.-" 

The  practice  in  this  class  of  cases  has  already  been  considered. k 

ABATEMENT.(l) 

559.  Nature  of  the  defense. — A  plea  in  abatement  is  one  that 

(g)  Story's  Eq.  PL,  §?  838",  840.  ( j)    R.  S  1881.  ?  "2'?,. 

in)  Citing  Glassinglon  v.  Thwaites,  (k)  An  if,  g  171  ft  soq.  F«»r  forms 
2  Russ.  458;  Whiting  v.  Rush,  2  Y.  &  of  complaint,  mid  affidavit  for  inter- 
Coll.  546;  Graham  v.  Coape,  9  Sim.  93,  pleader,  see  Vol.  3,  pp.  181,  332,  596. 
102;  s.  c.,  3  Myl.  &  Cr.  638;  Ellsworth  (1)  For  forms  of  answers  in  abate- 
v.  Curtis,  10  Paige,  105.  ment,  see  Vol.  3,  pp.  334,  335. 

(i)  Story's  Eq.  PL,  §  839. 


362  ANSWER.  [CHAP. 

defeats  the  present  action,  but  does  not  show  that  the  plaintiff  is  for- 
ever concluded.  At  common  law  pleadings  were  divided  into  dilatory 
&ndperernpto)-y,  and,  as  a  subordinate  division,  into  pleas  to  the  jurisdic- 
tion of  Hie  court,  in  suspension  of  the  action,  in  abatement  of  the  writ  or 
declaration,  or  in  bar  of  the  action.1 

The  code  contains  no  such  division  or  classification  of  pleas  or  an- 
swers. With  the  exception  of  those  in  suspension  of  the  action  and  in 
abatement  of  the  writ,  the  right  to  interpose  the  defenses  thus  classified 
at  common  law  still  exists.  Until  the  revision  of  1881  defenses  were 
the  same,  so  far  as  the  manner  of  pleading  and  trying  them  were  con- 
cerned, except  that  answers  in  abatement  must  be  sworn  to.  The  ef- 
fect of  a  successful  defense  in  abatement  was  the  same,  however,  as  at 
common  law.m 

Under  the  present  statute,  as  matters  in  abatement  must  be  pleaded 
before  pleas  in  bar,  it  is  more  important  that  the  pleader  should  deter- 
mine what  must  be  pleaded  as  matter  in  abatement,  in  order  to  avoid 
a  waiver  of  the  defense  by  pleading  to  the  merits. 

560.  Must  precede  pleas  in  bar. — At  common  law  pleas  in 
abatement  must  precede  pleas  in  bar." 

Under  the  code  of  1852  it  was  much  questioned  whether  matter  in 
abatement  must  be  pleaded  alone,  or  whether  it  was  such  a  defense  to 
the  action  as  should  be  pleaded  with  other  defenses  and  tried  at  the 
same  time. 

It  was  finally  held  in  this  state,  and  most  of  the  other  states  prac- 
ticing under  the  code  system,  that  matter  in  abatement  should  be 
pleaded  in  the  same  answer  with  other  defenses,  and  submitted  for 
trial  at  the  same  time.0 

But  the  revised  statute  of  1881  provides:  "Sec.  365.  Pleadings 
denying  the  jurisdiction  of  the  court,  or  in  abatement  of  the  action, 
and  all  dilatory  pleadings,  must  be  supported  by  affidavit." 

"  The  character  or  capacity,in  which  a  party  sues  or  is  sued,  and  the 
authority  by  virtue  of  which  he  sues,  shall  require  no  proof  on  the  trial 
of  the  cause,  unless  such  character,  capacity,  or  authority  be  denied  by 
a  pleading  under  oath,  or  by  an  affidavit  filed  therewith.  An  answer 
in  abatement  must  precede,  and  can  not  be  pleaded  with  an  answer  in 
bar,  and  the  issue  thereon  must  be  tried  first  and  separately.  If  the 
issue  be  found  against  the  answer,  the  judgment  must  be  that  the 

(1)  Stephen  PI.  46.  (o)  Thompson  v.  Greenwood,  28  Ind. 

(m)  Pomeroy's  Rem..  §  698.  327;    Bond  v.  Wagner,  28    Ind.  462; 

(n)  Stephen  PI.  430.  Bliss'  Code  PI.  345;  Pom.  Rem.,  §§  697, 

698. 


XV.]  ANSWER.  363 

party  plead  over,  and  against  him  for  all  costs  of  the  action  up  to  that 
time."P 

This  amendment  of  the  code  takes  us  back  to  the  common-law  rule, 
and  an  answer  in  abatement  can  not  be  pleaded  with  an  answer  in  bar.C1 

561.  Must  be  specially  pleaded. — Matters  in  abatement  can 
not  be  proved  under  the  general  denial,  but  must  be  specially  pleaded. ! 

And  this  is  true  in  courts  of  justices  of  the  peace,  where  the  pni"- 
tice  is  much  more  liberal  than  in  the  higher  courts,  in  allowing  de- 
fenses to  be  proved  without  being  specially  pleaded/ 

562.  Must  be  verified. — Answers  in  abatement  must  be  verified. 
This  is  required  by  the  express  terms  of  the  statute.9 

But  the  answer  is  not  bad  on  demurrer  for  want  of  verification.* 
The  defect  must  be  reached  by  motion. 

WHAT   MAY  BE   PLEADED   IN   ABATEMENT. 

563.  "Want  of  jurisdiction  of  the  person. — Pleas  to  the  ju- 
risdiction of  the  court,  and  pleas  in  abatement,  were  regarded  as  sepa- 
rate and  distinct  defenses  at  common  law,"  and  so  recognized  in  equity." 

"A  plea  to  the  jurisdiction  is  one  by  which  the  defendant  excepts 
to  the  jurisdiction  of  the  court  to  entertain  the  action."" 

The  statute  recognizes  the  distinction  between  pleas  to  the  jurisdic- 
tion and  pleas  in  abatement,  by  providing  that  both,  naming  them, 
shall  be  verified. x 

Prior  to  the  revision  of  the  code,  the  question  whether  a  pleading 
denying  the  jurisdiction  of  the  court  should  be  classed  as  one  in  abate- 
luent  or  not,  was  of  no  practical  importance,  as  they  must  be  sworn  to 
and  tried  in  the  same  manner,  whether  they  were  so  regarded  or  not. 
But  the  question  is  of  importance  now,  as  if  they  are  pleas  in  abate- 
ment they  must  be  first  tried. 

An  answer  that  the  court  has  not  jurisdiction  of  the  subject-matter 
is  clearly  not  an  answer  in  abatement.  It  goes  to  defeat  the  cause  of 
action.  But  where  it  is  pleaded  that  the  court  has  not  jurisdiction 

(p)  R.  S.  1881,  §  365.  Ind.  413;  Toledo  Agricultural  Works 

(q)  Pomeroy's  Rem  ,  \  697.  v.    Work,  70   Ind.  253;    Buchanan    ». 

(r)  R.  S.  1881,  I  1460.  The    Logansport,  etc.,  R.  W.  Co.,  71 

(s)  R.  S.  1881,  \  365;  Bradley  v.  The  Ind.  265. 
Bank  of  the  State  of  Indiana,  20  Ind.         (t)  Ante,  §  503. 
628;  The  Indianapolis,  etc.,  R.  R.  Co.         (u)  Stephen  PI.  46. 
v.  Summers,  28  Ind.  521:  Knoeffel  v.         (v)  Story's  Eq.  PI.,  §  705  et  seq. 
"Williams,  30  Ind.  1;  Wilson  v.  Poole,         (w)  Stephen  PI.  46. 
33   Ind.  443;    Beeson   v.  Howard,   44         (x)  R.  S.  1881,  \  365. 

(1)  Post,  §  982. 


364  ANSWER.  [CHAP. 

of  the  person  of  the  defendant,  it  has  been  recognized,  by  our  supreme 
court,  as  an  answer  in  abatement  of  the  action. y 

Mr.  Iglehart,  in  his  work  on  Practice,  classes  answers  to  the  juris- 
diction, both  of  the  subject-matter  and  the  person  of  the  defendant,  as 
dilatory  pleas  but  not  in  abatement.2 

And  in  the  revision  of  McDonald's  Treatise  on  Justices,  by  the  same 
author,  it  is  expressly  stated  that  an  objection  that  the  defendant  does 
not  reside  in  the  township  and  is  not  suable  therein,  does  not  seem  to  fall 
within  the  idea  of  a  defense  in  abatement.* 

In  the  same  work  it  is  said  that  pleas  to  the  jurisdiction  may  be 
given  in  evidence  before  a  justice  without  being  specially  pleaded,  but 
pleas  in  abatement  must  be  specially  pleaded  and  sworn  to.b 

564.  Want  of  capacity  to  sue. — Want  of  capacity  to  sue  may 
be  pleaded  in  abatement.     As  a  cause  for  demurrer,  want  of  capacity 
to  sue  applies  to  legal  disabilities  only,  such  as  infancy  and  the  like.0 

But  the  right  to  plead  in  abatement  has  been  extended  much  farther. 
Thus,  it  is  held  that  the  question  of  the  right  of  an  executor  or  ad- 
ministrator to  sue  can  only  be  called  in  question  by  answer  in  abate- 
ment.*1 

And  that  a  corporation  has  ceased  to  exist,6  or  that  the  corporation 
has  no  legal  existence/ 

565.  Non-joinder  of  necessary   parties. — A   non-joinder  of 
necessary  parties,  either  plaintiff  or  defendant,  is  cause  for  abatement. 
If  the  action  is  on  a  joint  contract,  and  parties  are  omitted,  the  objec- 
tion must  be  raised  by  demurrer  if  the  defect  appears  on  the  face  of 
the  complaint.g     But  where  it  does  not  so  appear  it  should  be  raised 
by  answer  in  abatement.11 

It  may  also  be  shown  by  answer  that  the  party  suing  is  not  the  real 

(y)  Ludwick  v.  Beckamire,  15  Ind.  (d)  Nolte  v.  Libbert,  34  Ind.  163. 

198;    Keller    v.  Miller,    17   Ind.   206;  (e)  The  President   and   Trustees  of 

iJrudy  v.  Richardson,  18  Ind.  1  ;  Storm  Hartsville  University  v.  Hamilton,  34 

r.  Worland,  19  Ind.  203;    Michael  v.  Ind.  500;  Meikel  v.  The  German  Sav- 

Thomas,  24  Ind.  72;  Grass  v.  Hess.  37  ings  Fund  Society,  16  Ind.  181. 

Ind.  193;  Nesbit  v.  Long,  37  Ind   300;  (f)  Jones   v.  The   Cincinnati   Type 

Hawley  v.  The  State,  69  Ind.  98;  The  Foundry  Co.,  14  Ind  89. 

State  v.  Ennis,  74  Ind.  17.  (g)  Ante,  ?§  95,  482. 

(z)  Iglehart's  Pr.,  p.  49,  g!4.  (h)   Bledsoe  v.  Irvin,  35   Ind.  293; 

(a)  Iglehart  (McDonald's  Treatise),  Dillon  v.  The  State  Bank,  6  Blkf.  5; 
p.  60,  I  2.  Wilson  v.  The  State,  6  Blkf.  212 ;  Gil- 

(b)  Iglehart  (McDonald's  Treatise),  bert  v.  Allen,  57  Ind.  524;  Thomas  v. 
p.  58,  §  3.  Wood,  61  Ind.  132. 

(c)  Ante,  §  479. 


XV.]  ANSWER.  365 

party  in  interest,  in  which  case  the  answer  must  state  the  facts  show- 
ing that  the  plaintiff  is  not  and  who  is  the  real  party  in  interest.' 

566.  Must  show  that  omitted  defendant  is  still  living. — If 
a  complaint  on  a  joint  contract  shows  upon  its  face  that  all  of  the  par- 
ties who  should  be  plaintiffs  are  not  joined,  it  is  incumbent  upon  the 
plaintiffs  suing  to  show  in  their  complaint  an  excuse  for  not  joining 
such  parties.     But  where  the  non-joinder  is  of  parties  who  should  be 
defendants,  the  defendants  sued  must  show  by  answer  in  abatement 
that  the  omitted  parties  are  such  as  should  be  joined.     For  this  reason 
it  has  been  held  that  where  a  plaintiff  is  omitted  the  complaint  must 
allege  the  fact  if  he  is  dead,  or  it  will  be  bad  on  demurrer,  while  if  it 
is  a  defendant  who  is  not  joined  the  plea  in  abatement  must  show  af- 
firmatively, not  only  that  he  should  be  joined,  but  that  he  is  still  liv- 
ing ;  and  if  the  complaint  does  not  show  on  its  face  that  the  party  is 
alive,  a  demurrer  will  not  lie,  but  an  answer  in  abatement  is  neces- 
sary. j 

567.  Another  action  pending. — Another  action  pending  between 
the  same  parties  for  the  same  cause  of  action  at  the  time  the  suit  is 
commenced  is  cause  for  abatement.k 

But  an  action  pending  in  another  state  can  not  be  pleaded.1 
Nor  will  the  pendency  of  an  action  in  one  of  the  federal  courts 
abate  the  action,  except  perhaps  where  the  court  is  sitting  in  this  state, 
and  the  jurisdiction  of  the  court  in  which  the  action  is  pending  is  con- 
current with  that  of  the  state  court. m 

It  can  not  be  regarded  as  settled  whether  the  pendency-  of  an  action 
in  a  Federal  court  is  cause  for  abatement  or  not,  even  where  the  juris- 
diction is  concurrent,  but  there  are  authorities  holding  that  it  is  suf- 
ficient." 

(i)  Ante,  \\  483,  564;  Smith  v.  The  The  Lafayette,  etc.,  R.  R  Co.,  50  Ind. 

Bank  of  the  State,  18  Ind.  327    Math-  85,  117;  Vol.  3,  p.  335. 

ias  v.  Thomas,  101  Ind.  1 19 ;  Vol.  3,  p.  (1)  De  Armond  v.  Bohn,  12  Ind.  607 ; 

334.  The  Eaton,  etc.,  R.  R.  Co.  v.  Hunt,  20 

(j)  Gilbert  v.  Allen,  57   Ind.  524;  Ind.  457;  Bradley  v.  The  Bank  of  the 

Wilson  v.  The  State,  0  Blkf.  '2V2;  I>il-  State  of  Indiana,  20  Ind.  528;   West 

Ion  v.  The  State   Bank  of  Indiana,  <>  Syndic,   etc.,   v.   McConnell,   25    Am. 

Blkf.  5;    Levi  v.  Haverstick,  51  Ind.  Dec.  191,  and  note;  ante,  §  480. 

236;  Vol.  3,  p.  334.  (m)  Chart's    Prac.,    pp.    52,   53; 

(k)  Smith  v.  Blatchford,  2  Ind.  184;  Bliss'  Code  PI.,  f  410. 

Lee  v.  Hefley,   21    Ind.  98;    Loyd   v.  (n)  West    v.    McConnell,    25    Am. 

Reynolds,  29  Ind.  209;  The  Comm'rs  Dec.  191,  and  note;  Iglehart's  Prac.,  p. 

of  Morgan  County  v.  Holman,  34  Ind.  53;  People^.  Judges,  15  Am.  Rep.  195 

256;  Dawson  v.  Vaughan,  42  Ind.  395;  (27  Mich.  406);    Earl  v.  Raymond,  4 

Moore   r.    Kesler,   59    Ind.   152;    The  McLean,  233. 
Board,  e.c ,  of  Tippecanoe  County  v. 


366  ANSWER.  [CHAP. 

568.  Can   attachment   proceeding  be   pleaded    in   abate- 
ment ? — In  an  early  case  in  this  state  a  doubt  was  expressed  whether 
the  pendency  of  proceedings  in  attachment  could  be  pleaded  in  abate- 
ment.0 

So  far  as  I  know  the  question  is  still  an  open  one  in  this  state.  In 
other  states  the  authorities  are  so  conflicting  as  to  furnish  no  settled 
rule  by  which  we  can  be  governed. 

In  some  of  the  authorities  the  attachment  proceeding  is  held  to  be 
cause  for  abatement,  while  in  others  it  is  held  that  it  can  only  be  cause 
for  suspending  the  action  until  the  attachment  proceeding  is  deter- 
mined. The  question  is  considered  by  Mr.  Drake,  in  his  work  on  at- 
tachment, in  speaking  of  the  liability  of  the  garnishee,p  and  many  of 
the  authorities  in  the  different  states  are  cited. q 

It  is  undoubtedly  true  that  a  proceeding  in  rem,  as  a  general  rule, 
can  not  be  pleaded  in  abatement  of  an  action  in  personam,  although 
the  object  of  the  two  actions  is  to  recover  the  same  debt/  So  that  the 
cases  in  which  an  attachment  proceeding  could  be  pleaded  must  neces- 
sarily be  of  rare  occurrence. 

569.  Misnomer. — Misnomer  is  cause  for  abatement,  whether  the 
defect  is  in  suing  by  the  wrong  name,  or  the  omission  of  the  Christian 
name  of  the  party.8 

The  proper  practice  in  case  of  misnomer  was  thoroughly  considered 
in  the  chapter  on  demurrer,  and  the  authorities  will  be  found  cited  in 
that  connection.1 

570.  Actions  prematurely  brought. — It  is  sometimes  cause  for 
abatement  that  an  action  is  prematurely  brought.     It  may  also  be 
cause  for  demurrer  for  want  of  sufficient  facts.     Thus  a  suit  on  a  note 
may  be  brought  before  the  note  is  due.     If  the  fact  appears  on  the 
face  of  the  complaint  it  can  be  reached  by  demurrer,  or  the  action  could 
be  defeated  on  the  merits. 

There  are  certain  cases  growing  out  of  the  statutes  governing  in- 
surance companies»and  other  foreign  corporations,  requiring  certain  acts 
to  be  done  to  entitle  them  to  do  business  in  this  state.  The  failure  to 
comply  with  this  statute  would  seem  to  afford  an  ample  defense 
against  an  action  by  the  company  where  the  statute  had  not  been  com- 

(o)  Smith  v.  Blatchford,  2  Ind.  184.          (r)  People  v.  Judges,  15  Am.  Rep. 

(p)  Drake  on  Attachment,  §  700  et     195 ;  s.  c.  27  Mich.  406. 
seq.  (s)  Pedens   v.   King,    30   Ind.    181; 

(q)  "West  Syndic,  etc.,  v.  McConnell,  Sinton  v.  The  Steamboat  R.  R.  Roberts, 
25  Am.  Dec.  19J,  and  note.  46  Ind.  476;  Vol.  3,  p.  335. 

(t)  Ante,  §  505. 


XV.]  ANSWER.  367 

plied  with.  But  the  supreme  court  has  held  otherwise  in  a  number  of 
cases.  It  is  held  that  an  answer  setting  up  a  failure  to  comply  with 
the  statute  is  only  good  as  an  answer  in  abatement,  on  the  ground  that 
the  action  is  prematurely  brought." 

And  the  same  rule  has  been  recognized  in  case  of  other  actions  pre- 
maturely brought/ 

571.  Death  of  party. — The  question  of  the  survivor  of  actions 
lias  been  considered  under  the  head  of  parties.w 

"  A  cause  of  action  arising  out  of  an  injury  to  the  person  dies  with 
the  person  of  either  party,  except  in  cases  in  which  an  action  is  given 
for  an  injury  causing  the  death  of  any  person,  and  actions  for  seduc- 
tion, false  imprisonment,  and  malicious  prosecution."1 

Where  the  cause  of  action  does  not  survive,  the  action  is  entirely 
defeated  by  the  death  of  either  party ;  but  where  the  action  survives, 
it  will  be  discontinued  until  the  proper  party  is  substituted/ 

The  practice  in  case  of  the  death  of  either  party,  is  to  suggest  the 
death  and  have  the  suggestion  entered  of  record. 

When  this  is  done  no  further  action  will  be  taken  in  the  cause  until 
the  proper  party  is  substituted. 

The  statute  expressly  provides  that  "  no  action  shall  abate  by  the 
death  or  other  disability  of  a  party,  or  the  transfer  of  any  interest 
therein,  if  the  cause  of  action  survive  or  continue."2 

572.  In    attachment    proceedings. — Attachment  proceedings 
must  be  supported  by  affidavit.     The  complaint  being  sufficient,  defects 
in  the  affidavit  can  not  be  reached  by  demurrer  but  may  be  by  motion ; 
and  it  has  been  held  that  the  foundation  of  the  attachment  proceed- 
ings may  be  controverted  by  answer  in  abatement.8 

But  the  later  cases  hold  that  a  denial  of  the  allegations  of  the  affida- 
vit in  attachment  is  an  answer  in  bar  of  the  attachment  proceedings, 
and  not  in  abatement.1* 

(u)  The  Walter  A.  Wood,  etc.,  Ma-  (y)  Ante,  %  163,  164. 

chine   Co.  v.  Caldwell,   54   lu.l.  270;  (z)  R.   S.   1881,   §  271;   Lawson  v. 

Daily  v.  The  National  Life  Ins.  Co.,  64  Newcomb,  12  Ind.  439. 

Irid.  1 ;  The  Singer  Manufacturing  Co.  (a)  Abbott  v.  Warriner,  7  Blkf.  573; 

v.  Brown,  «4  Ind.  548;  Toledo  Agri-  Vorhees  v.  Hoagland,  6  Blkf.  232. 

cultural  Works  v.  Work,  70  Ind.  253;  (b)  The  Excelsior  Fork  Co.  v.  Luk- 

The  American  Ins.  Co,  v.  Wellman,  69  en?,  38  Ind.  438 ;   Bradley  v.  The  Bank, 

Ind.  413.     But  see  Vol.  3,  pp.  335,  336,  etc.,  20  Ind.  528;  Maple  v.  Burnside, 

357.  22  Ind.  139;  Dunn  v.  Crocker,  22  Ind. 

(v)  The  Tell  City   Furniture  Co.  v.  324;    Bates  v.  Spoon er,   45   Ind.  489; 

Nees,  63  Ind.  245 ;  Hayne  v.  Fisher,  68  Johnston  v.  Field,  62  Ind.  377;  Foster 

Ind.  158.  v.  Dryfus,  16  Ind.  158. 

(w)  Ante,  \  64  et  seq. 

(x)  R.  S.  1881,  §  282. 


368  ANSWER.  [CHAP. 

Where  the  question  is  as  to  the  capacity  of  the  plaintiff  to  sue, 
or  other  matters  that  affect,  not  the  questions  of  fact  presented  by  the 
affidavit  in  attachment,  but  the  right  of  the  plaintiff  to  maintain  the 
proceeding,  admitting  the  facts  to  be  true,  the  objection  must  be  made 
by  answer  in  abatement  or  motion. c 

HOW   MATTER   IN   ABATEMENT   WAIVED. 

573.  By  failure  to  demur. — Under  the  statute  all  matters  in 
abatement,  that  are  made  causes  for  demurrer,  are  waived  by  a  failure 
to  demur,  where  the  objection  appears  on  the  face  of  the  complaint.'1 

Therefore,  if  the  objection  appears  on  the  face  of  the  complaint  it 
must  be  raised  by  demurrer,  and  can  not  be  by  answer.6 

574.  By  pleading  to  the  merits. — Where  the  matter  in  abate- 
ment does  not  appear  on  the  face  of  the  complaint  it  must  be  pleaded 
by  answer  in  abatement  before  pleading  to  the  merits/    And  by  plead- 
ing to  the  merits  the  right  to  plead  such  matter  in  abatement  is 
waived.8  . 

So  far  as  the  authorities  cited  held  that  answers  in  abatement  and 
to  the  merits  could  not  be  pleaded  together,  and  that  where  they  were 
so  pleaded  the  answers  in  abatement  were  waived,  they  have  been 
overruled  by  later  cases. h 

But,  under  the  Revised  Statutes  of  1881,  as  answers  in  abatement 
must  precede  those  to  the  merits,  to  plead  answers  in  bar  and  in  abate- 
ment together  must  have  the  effect  to  waive  the  latter,  and  the  earlier 
cases  on  this  point  must  be  taken  as  stating  the  rule  correctly. 

575.  By  going  to  trial  on  the  merits. — Under  the  rule  estab- 
lished that  pleas  in  bar  and  in  abatement  could  be  pleaded  and  tried 
together,  it  was  held  that  by  consenting  to  a  trial  on  the  merits,  with- 
out insisting  upon  a  trial  of  the  issues  in  abatement,  was  a  waiver  of 
such   issues.'    And,  under  the   present  code,  the  defendant  having 
pleaded  in  abatement  must  require  a  trial  of  the  issues  thus  formed  or 
the  answer  will  be  waived. 

576.  Answers  in  abatement  strictly  construed. — The  rule 

(c)  Drake  on  Attachment,  §§  11,  36,  (g)  Keller   v.  Miller,    17   Ind.  206; 
115.  Carpenter  v.  The  Mercantile  Bank,  17 

(d)  R  S.  1881,2  343.  Ind.   253;    Jones    v.   The    Cincinnati 

(e)  Ante,   §§  519,  520;    Busk.  Prac.  Type  Foundry,  14  Ind.  89;  Wallace  P. 
171.  Furber,  62  Ind.  126. 

(f )  K  S.  1881,  §  365.  (h)  Ante,  §  560. 

(i)  Wallace  v.  Furber,  62  Ind.  126. 


XV.]  ANSWER. 

that  the  pleading  will  be  most  strongly  construed  against  the  pleader 
does  not  apply  generally  under  our  practice. •>  But  the  supreme  court 
has  held  that  "  all  dilatory  pleas  must  be  strictly  construed.  No  in- 
tendment  can  be  taken  in  their  favor.  What  is  not  properly  averred 
within  them  must  be  held  as  against  them."  k 

ANSWERS   IN   BAR.(l) 

577.  The  statute. — "Sec.  347.  TKe  answer  shall  contain: 

"  First.  A  denial  of  each  allegation  of  the  complaint  controverted 
by  the  defendant. 

"  Second.  A  statement  of  any  new  matter  constituting  a  defense, 
counterclaim  or  set-off,  in  plain  and  concise  language. 

"  Third.  The  defendant  may  set  forth  in  his  answer  as  many  grounds 
of  defense,  counterclaim  and  set-off,  whether  legal  or  equitable,  as  he 
shall  have.  Each  shall  be  distinctly  stated  in  a  separate  paragraph 
and  numbered,  and  clearly  refer  to  the  cause  of  action  intended  to  be 
answered." l 

THE   GENERAL   DENIAL. 

578.  Object  and  form. — The  object  of  a  general  denial  is  to  put 
in  issue  every  material  allegation  of  the  complaint.     At  common  law 
there  were  different  forms  of  denial  applicable  to  different  kinds  of  ac- 
tions.    Under  the  code  the  denial  should  be  the  same  in  every  case. 
No  precise  form  is  necessary  if  it  contains  an  express  denial  of  the  al- 
legations of  the  complaint.     The  usual  form  is  given  by  Mr.  Pomeroy: 
"  The  defendant  for  answer  to  the  complaint  herein  denies  each  and 
every  allegation  thereof."™ 

579.  What  may  be  proved  under. — One  of  the  greatest  abuses 
of  the  code  system  of  pleading  is  ,the  tendency  to  plead  too  much. 
This  is  particularly  true  of  pleadings  by  way  of  answer.     A  very  great 
part  of  the  facts  pleaded  specially  can  as  well  be  proved  under  the 
general  denial,  and  frequently  a  defendant  loses  his  case  in  the  su- 
preme court  by  pleading  such  facts  as  would  be  competent  under  the 
general  denial. 

Under  the  general  denial  no  question  of  the  sufficiency  of  the  plead- 
ing can  arise  upon  demurrer. 

(j)  Ante,  p.  341.  (m)  Pomeroy's  Rem.,  §  613;  Vol.  3, 

(k)  The  Board,  etc..  of  Tippecanoe  p.  837. 

County  T>.  The  Lafayette,  etc.,  R.  R.  (1)   For  forms  of  answers  in  bar,  see 

Co.,  50  Ind.  85,  117.        •  Vol.  3,  pp.  337-40:2. 

(1)   R.  S.  1881,?  347. 
24 


370  ANSWER.  [CHAP. 

The  same  facts  that  could  be  proved  under  the  general  denial,  when 
pleaded  specially,  give  rise  to  a  demurrer  which  may  lead  to  a  ruling 
that  will  reverse  the  case.  When  this  result  follows  from  setting  up 
an  unnecessary  special  defense,  the  attorney  alone  is  responsible  for  the 
consequences.  Besides  this,  it  is  sometimes  important  to  conceal  the 
facts  from  the  adversary.  This  can  be  done  under  a  general  denial, 
while  a  special  answer,  wholly  unnecessary,  can  only  serve  to  disclose 
the  facts  and  give  the  plaintiff  an*  unnecessary  advantage.  This  ten- 
dency toward  too  much  special  pleading  is  the  result  of  uncertainty  as 
to  the  facts  that  can  be  proved  under  the  general  denial.  No  fixed 
rule  can  be  laid  down  that  will  remove  this  uncertainty.  It  is  one  of 
the  most  important  questions  in  the  practice,  and  one  that  arises  almost 
every  day. 

The  question  is  thoroughly  considered  by  Mr.  Pomeroy  in  his  able 
work  on  Remedies."  In  stating  the  rule  the  author  says:  "All  the 
possible  defenses  in  bar  may  be  reduced  to  a  few  comprehensive  classes,, 
and  this  classification  will  assist  us  in  appreciating  the  distinction  be- 
tween thos%  defenses  which  may  be  proved  under  a  traverse  of  the 
plaintiff's  allegations  and  those  which  must  be  pleaded  specially  as  new 
matter,  or  matter  in  confession  and  avoidance.  In  respect  to  contracts, 
all  possible  defenses  must  either  (1)  deny  that  there  ever  was  a  cause 
of  action,  or  (2)  admit  there  was  once  a  cause  of  action,  but  avoid  it 
by  showing  subsequent  or  other  matter.  The  first  of  these  two  classes 
may  be  subdivided  into  (a)  those  which  deny  that  a  sufficient  contract 
was  ever  made,  and  (6)  those  which  admit  that  a  sufficient  contract 
was  originally  made,  but  show  that  before  breach  thereof,  that  is  before 
the  time  for  performance  arrived,  it  was  in  some  manner  discharged  or 
ceased  to  be  binding.  Similar  divisions  might  be  made  of  the  defenses 
in  bar  to  personal  actions  for  all  purposes.  From  this  analysis  the 
following  conclusions  may  be  drawn  :  Defenses  in  bar  to  all  legal  ac- 
tions on  contract,  or  for  tort,  may  be  separated  into,  first,  those  which 
deny  that  the  plaintiff  ever  had  the  cause  of  action  alleged,  because 
either  no  foundation  therefor  ever  existed,  or  if  such  foundation  ever 
existed  it  had  been  in  some  manner  removed  before  the  cause  of  action 
arose  therefrom ;  and,  second,  those  which  admit  that  a  cause  of  action 
once  existed,  but  show  that  it  no  longer  exists."  ° 

This  is,  perhaps,  as  clear  a  statement  of  the  division  of  defenses  as 
could  be  made.  Those  defenses  which  deny  that  the  cause  of  action 
alleged  in  the  complaint  ever  existed  are  properly  pleaded  by  way  of 
general  denial,  and  every  fact  tending  to  disprove  the  cause  of  action 
set  out  in  the  complaint  is  competent  under  the  iSsue  thus  formed. 

(n)  Pomeroy's  Rem.,  ?  642  et  seq.  (o)  Pomeroy's  Ttem.,  §  644. 


XV.]  ANSWER.  371 

Where  the  defense  admits,  or  does  not  controvert,  the  facts  alleged 
as  a  cause  of  action,  but  depends  upon  new  matter  which  may  amount 
to  a  defense,  admitting  the  original  cause  of  action  to  have  existed,  must  be 
specially  pleaded. 

By  the  express  terms  of  the  statute,  "  under  a  mere  denial  of  any 
allegation,  no  evidence  shall  be  introduced  which  does  not  tend  to 
negative  what  the  party  making  the  allegation  is  bound  to  prove."  p 

So  the  real  question  is  whether  a  given  fact,  if  offered  under  the 
general  denial,  would  tend  to  negative  the  material  allegations  of  the 
complaint.  If  so,  the  fact  should  not  be  specially  pleaded.*1 

It  must  not  be  understood,  however,  that  a  party  is  confined,  under 
the  general  denial,  to  negative  proof  in  denial  of  the  facts  stated  as  a 
cause  of  action.  Facts  independent  of  those  alleged  in  the  complaint, 
but  which  are  inconsistent  therewith  and  tend  to  negative  the  plaintiffs 
cause  of  action,  are  admissible/ 

Thus,  it  is  held  that  in  an  action  of  replevin  the  defendant  may, 
under  the  general  denial,  prove  title  in  himself,9  or  in  a  third  person.* 

This  is  placed  upon  the  ground  that  the  plaintiff,  to  recover,  must 
prove  title  in  himself,  where  he  alleges  title,  and  the  fact  of  ownership 
in  another  is  inconsistent  with  and  tends  to  negative  his  allegation  of 
title  in  himself. 

It  is  also  held  that  in  actions  for  malicious  prosecution,  probable 
cause  may  be  proved  under  the  general  denial."  And  where  the 
action  is  against  a  grand  juror,  he  may  avail  himself  of  the  protection 
afforded  him  by  law  without  pleading  it  specially. v 

(p)  R.  S.  1881,  §  377.  36  N.  Y.  Superior  Ct.,  262;  Wheeler  v. 

(q)  Kimberling  v.  Hall,  lOInd.  407;  Billings,  38  N.  Y.  263;  Greenfield  v.t 
Norris  v.  Amos,  15  Ind.  365 ;  Bingham  Mass.  Mut.  L.  Ins.  Co.,  47  N.  Y.  430; 
v.  Kimball,  17  Ind.  396;  Watkins  v.  Bruck  v.  Tucker,  42  Cal.  346;  Mar- 
Jones,  28  Ind.  12;  The  Lafayette,  etc.,  shall  v.  Shatter,  32  Cal.  176;  Nelson  v. 
R.  R.  Co.  v.  Ehman,  30  Ind.  83 ;  The  Brodhack,  44  Mo.  596 ;  Bledsoe  v. 
Adams  Express  Co.  v.  Darnell,  31  Ind.  Simms,  53  Mo.  305  ;  Vase  v.  Wood- 
20;  Shellenbarger  v.  Blake,  67  Ind.  ford,  29  Ohio  St.  245;  Bliss' Code  PI., 
75;  Reeder  v.  Maranda,  66  Ind.  485;  §  327;  Schermerborn  v.  Van  Allen,  18 
Day  v.  Wamsley,  33  Ind.  145;  Hunter  Barb.  29;  Pomeroy's  Rem.,  §  674  et 
v.  Mathis,  40  Ind.  356;  Trogden  v.  seq..  and  cases  cited;  Farmer  v.  Cal- 
Deckard,  45  Ind.  572 ;  Kenedy  ».  Shaw,  vert,  44  Ind.  209. 
38  Ind.  474;  Sparks  v.  Heritage,  45  (s)  Sparks  v.  Heritage,  45  Ind.  66. 
Ind.  66;  Moorman  v.  Barton,  16  Ind.  (t)  Kenedy  v.  Shaw,  38  Ind.  474. 
206;  Dunn  v.  Johnson,  33  Ind.  54;  (u)  Ammerman  v.  Crosby,  26  Ind. 
Drover  v.  Evans,  59  Ind.  454;  McGill  451;  Hunter  v.  Mathis,  38  Ind.  356, 
v.  Pressley,  62  Ind.  193.  359. 

(r)  McKyring  v.  Bull,  16  N.  Y.  297  ;  (v)  Hunter  v.  Mathis,  40  Ind.  356. 
Schaus  «.  The  Manhattan  Gaslight  Co., 


372  ANSWER.  [CHAP. 

In  an  action  for  goods  sold  and  delivered  the  defendant  may  show, 
under  the  general  denial,  that  the  goods  were  sold  to  his  wife  in  such 
a  way  as  not  to  render  him  liable. w 

In  these  cases,  and  others  of  a  like  kind,  it  will  be  noticed  that  the 
evidence  tends  to  prove  that  the  plaintiff  has  no  cause  of  action. 
They  are,  therefore,  strictly  within  the  rule,  and  within  the  statutory 
provision  that  only  such  facts  can  be  proved  under  the  general  denial 
as  tend  to  negative  the  facts  set  up  as  a  cause  of  action. 

580.  Mitigation  of  damages. — The  question  whether  matters  in 
mitigation  must  be  specially  pleaded,  or  may  be  given  in  evidence  un- 
der the  general  denial,  has  given  rise  to  much  controversy  and  many 
conflicting  decisions. 

The  earlier  cases  in  New  York  were  clearly  to  the  effect  that  matters 
in  mitigation  might  be  proved  under  the  general  denial,  but  it  seems 
to  be  settled  in  that  state,  by  later  cases,  that  such  matter  must  be 
specially  pleaded.1 

At  common  law,  matters  that  went  merely  in  mitigation  of  damages 
were  not  regarded  as  defenses,  for  the  reason  that  no  partial  defenses 
were  recognized  under  the  common-law  system  of  pleading.  It  was 
the  well-established  rule,  therefore,  that  the  proof  was  admissible  under 
the  general  issue  and  could  not  be  specially  pleaded.  Under  the  code 
the  reason  for  this  rule  does  not  exist.  The  right  to  plead  a  partial 
defense  is  permitted  by  the  code  and  enforced  by  the  courts.  Not- 
withstanding this,  it  is  firmly  settled  by  authority  in  Indiana  that 
mitigating  facts  or  circumstances  may  be  given  in  evidence  under  the 
general  denial. y  ,,  • 

581.  In  actions  to  recover  real  estate  and  to  quiet  title.— 
In  actions  to  recover  real  estate  the  general  denial  is  extended  to  all 
defenses. 

•"  Sec.  1055.  The  answer  of  the  defendant  may  contain  a  denial  of 
each  material  statement  or  allegation  in  the  complaint ;  under  which 
denial  the  defendant  shall  be  permitted  to  give  in  evidence  every  de- 
fense to  the  action  that  he  may  have,  either  legal  or  equitable."2 

(w)  Day  v.  Wamsley,  33  Ind.  145.  O'Conner,    27    Ind.   69;    Swinney    v. 

(x)  McKyring    v.    Bull,   16    N.   Y.  Nave,  22  Ind.  178;  Blickenstaff  v.  Per- 

297;  Pomeroy's   Rem.,  §g  657,  695    et  rin,  27  Ind.  527;  Jenkins  v.  Parkhill, 

iseq.  25  Ind.  473;  Story  c.  O'Dea,  23  Ind. 

(y)  Smith   v.  Lisher,   23   Ind.  500;  326;    Summons   v.  Newman,   27   Ind. 

Henson  v.  Veach,  1  Blkf.  369;    Rich-  508;  Wisemun  v.  Lynn,  39  Ind.  250; 

ardson  v.  Barker.  7  Ind.  567;  Skillen  Allis  v.  Nanson,  41  Ind.  154. 

v.  Phillips,  23  Ind.  229;   O'Conner  v.  (z)  R.  S.  1881,  \  1055;  Woodruff  v. 


XV.]  ANSWER.  373 

This  statute  has  been  held  to  apply  *also  to  actions  to  quiet  the  title 
to  real  estate.8 

Where  the  defendant  claims  title  and  desires  to  have  his  own  title 
quieted  as  against  the  plaintiff,  he  must  set  up  his  title  by  way  of 
counterclaim  and  ask  for  affirmative  relief.b  The  statute  can  not 
be  construed  under  the  code  as  it  now  stands,  requiring  answers  in 
abatement  to  be  first  tried,  to  extend  to  such'  defenses.  It  must  be 
confined  to  defenses  going  to  the  merits  of  the  cause  of  action.0 

WHAT   THE   GENERAL  DENIAL  ADMITS. 

582.  Capacity  of  plaintiff  to  sue. — It  seems  like  a  contradic- 
tion in  terms  to  say  that  any  matter  can  be  admitted  by  a  general  de- 
nial, but  the  authorities  so  state  the  rule.    It  would,  perhaps,  be  better 
to  say  that  such  matters  are  not  put  in  issue  by  the  general  denial. 
As  a  general  denial  only  puts  in  issue  such  matters  as  are  alleged  in 
the  complaint,  it   is  manifest  that,  under  the  code,  where  the  facts 
showing  the  capacity  of  the  plaintiff  to  sue  need  not  be  alleged, d  the 
want  of  capacity  to  sue  can  not  be  proved  under  the  general  denial, 
and,  in  effect,  the  capacity  to  sue  is  admitted.6 

583.  Execution  of  -written  instrument. — The  statute  provides : 
"  Sec.  364.  When  a  pleading  is  founded  on  a  written  instrument,  or 
such  instrument  is  therein  referred  to,  or  when  an  assignment  in  writ- 
ing of  such  instrument  is  specially  alleged  in  a  pleading,  such  instru- 
ment or  assignment  may  be  read  in  evidence  on  the  trial  of  the  cause 
without  proving  its  execution,  unless  its  execution  be  denied  by  plead- 
ing under  oath,  or  by  an  affidavit  filed  with  the  pleading  denying  the 
execution.     And   when   a   written    instrument    or  assignment  is  so 
pleaded  or  referred  to,  proof  of  the  names  of  the  makers,  assignors, 
obligors,  assignees,  payees  or  obligees,  shall  not  be  necessary  unless  the 

Garnor,  20  Ind.  174;  Vail  v.  Halton,         (e)  Downs  v.  McCombs,  16  Ind.  211; 

14  Ind.  344;  Rogers  v.  Place,  29  Ind.  Jones  v.  The  Cincinnati  Type  Foundry, 

577,581;    Brown  v.  Freed,  43  Ind.  253;  14  Ind.  89;    Hubbard  v.  Chappel,  14 

Maxwell   v.  Campbell,   45   Ind.   360;  Ind.  601 ;   Heaston  v.  The  Cincinnati, 

Jenkins  v.  Radcliff,  46  Ind.  437.  etc.,  R.  R.  Co.,  16  Ind.  275;  Harrison 

(a)  Graham  v.  Graham,  55  Ind.  23,  v.  The  Martinsville,  etc.,  R.  R.  Co.,  16 
28;   R.  S.  1881,  gg  1070,  1071.  Ind.  505;   Lawson  v.  Sherry,  21  Ind. 

(b)  The   Jeffersonville,   etc.,    R.   R.  363;  The  Board,  etc.,  of  Bartholomew 
Co.  v.  Oyler,  60   Ind.  383;    Marat   v.  County  v.  Bright,  18  Ind.  93;  The  Jef- 
The   Geriaania,   etc.,  Building   Ass'n,  fersonville  R.  R.  Co.  v.  Hendricks,  26 
54  Ind.  37.  Ind.  228;   Hardy  v.  Merriwether,   14 

(c)  Wilson  v.  Poole,  33  Ind.  443.  Ind.  203. 

(d)  Ante,  \\  368-371. 


374  ANSWER.  [CHAP. 

same  shall  be  denied  by  a  pleading  under  oath,  or  by  an  affidavit  filed 
as  aforesaid." f 

This  section  of  the  code  is  amended  by  the  revision  of  1881. 

Under  the  code  of  1852,  the  written  instrument,  whether  the 
foundation  of  the  action,  or  referred  to  in  the  pleading  or  not,  must  be 
one  purporting  to  be  executed  by  one  of  Hie  parties ;  and  the  present  stat- 
ute contains  no  such  limitation,  but  applies  to  written  instruments  and 
assignments  generally. 

Under  the  original  section,  the  denial  of  the  execution  might 
be  made  by  affidavit  at  any  time  before  the  commencement  of  the 
trial.8  Now  the  affidavit  must  be  filed  until  the  pleading. 

The  present  section  provides  thut  the  names  of  parties  to  such  instru- 
ments or  assignments  need  not  be  proved  unless  denied  under  oath. 
The  original  section  contained  no  such  provision. 

The  general  denial,  in  this  class  of  cases,  only  puts  in  issue  the  exist- 
ence of  the  written  instrument,  which  must  be  produced  on  the  trial, 
or  sufficient  excuse  shown  for  its  non-production ;  h  but  when  produced 
its  execution  need  not  be  proved  unless  denied  under  oath.' 

Under  this  section  the  defendant  may  plead  non  est  factum  in  terms, 
and,  if  sworn  to,  the  answer  puts  in  issue  the  execution  of  the  instru- 
ment ;  but  it  has  been  held  sufficient  to  plead  the  general  denial  sworn 
to,  which  puts  in  issue  not  only  the  execution  of  the  instrument  but 
every  other  material  allegation  in  the  complaint.J  And  it  has  been 
held  sufficient  to  deny  the  delivery  of  the  instrument  under  oath.k 

While  the  present  statute  has  so  amended  the  code  of  1852  as  to 
extend  its  terms  to  written  instruments  executed  by  persons  not  parties 
to  the  action,  the  law  has  not  been  changed  in  this  respect.  Under  the 
old  code  the  rule  was  limited  to  instruments  purporting  to  be  executed 
by  one  of  the  parties  to  the  suit ;  but  the  statute  of  1843  was  general 
in  its  terms,  and  the  supreme  court  has  held,  in  a  number  of  cases,  that 

(f )  R.  S.  1881,  §  364  ;  Vol.  3,  p.  338.     Walser,  22  Ind.  73;  Evans  v.  Southern 

(g)  R.  S.  1876,  p.  75,  §  80.  Turnpike  Co.,  18  Ind.  101;  Stebbins  v. 
(h)  Fosdick    v.   Starbuck,    4    Blkf.     Goldthwait,  31  Ind.  159;  Price  v.  The 

417;  Breedlove  v.   The    Martinsville,  Grand  Rapids,  etc.,  R.  R.  Co.,  18  Ind. 

3tc.,  R.  R.  Co.,  12  Ind.  114.  137;  Coen  v.  Funk,  18  Ind.  345;   Brad- 

(i)  "Woollen    v.   Whitacre,    73   Ind.  ley  v.  The  Bank  of  the  State  of  In- 

198;   Unthank  v.  The  Henry  County  diana,  20  Ind.  528;  Hoefgan  v.  Harri- 

Turnpike   Co.,  6  Ind.  125;    Russell  v.  son,  7   Ind.  594;    Hicks   v.  Reigle,  32 

Drummond,   6   Ind.   216;    Pursley   v.  Ind.  360. 

Morrison,  7  Ind.  356;    Denny  v.  The  (j)   Evans   v.  The   Southern   Turn- 
Indiana,  etc.,  R.  R.  Co.,  11  Ind.  292;  pike  Co.,  18  Ind.  101. 
Belton   v.   Smith,   45   Ind.   291 ;    The  (k)  Ketcham   v.  The   New  Albany 
Peoria   Marine   and   Fire  Ins.   Co.  v.  and  Salem  R.  R.  Co.,  7  Ind.  391. 


XV.]  ANSWER.  375 

\ 

the  section  of  the  statute  of  1843,  relating  to  this  subject,  was  in  force 
after  the  enactment  of  the  code  of  1852.' 

And  the  same  was  held  with  reference  to  the  proof  of  the  names  of 
the  parties  to  such  instruments."1 

It  will  be  seen,  by  these  authorities,  that  where  a  note  or  other  in- 
strument is  executed  or  assigned  to  a  party,  by  the  initials  of  his  name, 
or  by  a  name  different  from  that  in  which  he  sues,  or  where  the  firm 
name  of  a  partnership  is  given,  no  proof  is  necessary  to  connect  the 
plaintiffs  with  the  transaction  by  proving  that  they  are  the  persons 
therein  named,  unless  the  fact  is  denied  under  oath. 

The  amendments  made  in  the  section  under  consideration  have  been 
pointed  out  because  tlje  effect  of  the  code  is  changed  ;  but  the  law  on 
these  subjects  is  the  same,  for  the  reason  that  the  provisions  of  the  re- 
vision of  1843  are  carried  into  the  new  code,  and  they  were  held  by 
the  supreme  court  to  have  been  continued  in  force  by  section  802  of 
the  code  of  1852." 

The  present  statute  contains  no  provision  by  which  former  statutes 
can  thus  be  kept  alive.0 

584.  Executors,  administrators  and  guardians,  need  not 
deny  execution  of  written  instrument  under  oath. — The  pres- 
ent code  provides  that  executors,  administrators,  or  guardians  need  not 
deny  the  execution  of  an  instrument,  or  the  assignment  thereof,  under 
oath,  but  the  same  must  be  proved  as  if  it  were  denied. p  This  was 
held  to  be  the  law  under  the  code  of  1852,  on  the  ground  that  the  sec- 
tion as  originally  enacted  applied  to  such  instruments  only  as  were  ex- 
ecuted by  one  of  the  parties  to  the  action,  and  therefore,  as  to  execu- 
tors, administrators,  or  heirs  of  such  party,  the  common-law  rule 
prevailed,  and  the  execution  of  the  instrument  must  be  proved,  whether 
its  execution  was  denied  under  oath  or  not.q 

The  amendment  of  the  code,  therefore,  does  not  change  the  law  in 
tlxis  respect,  but  makes  the  section  conform  to  the  decided  cases.  The 

(1)  R.  S.  1843,  p.  711,  §  116;  Patter-  (n)  R.  S.  1876,  p.  314,  §  802. 

son  v.  Crawford,  12  Ind.  241 ;  Berry  v.  (o)   R.  S.  1881,  §  1291. 

Bolan,  13  Ind.  259;  Belton  v.  Smith,  (p)  R.  S.  1881,  §  364. 

45  Ind.  291.  (q)  Riser   v.   Snoddy,   7   Ind.   442; 

(m)  R.  S.  1843,  p.  711,  §  218;  Aber-  Mahone,  Adm'r  v.  Sawyer,  18  Ind.  73; 

nathy  v.  Reeves,  7  Ind.  306;   Rees  v.  Martin  v.  Asher's  Adm'r,  25  Ind.  237; 

Simons,  10  Ind.  82;  Groves  v.  Train,  Barnett's  Adm'r  v.  The  Cabinet  Muk- 

11  Ind.  198;  Hauser  v.  Hayes,  11  Ind.  ers'    Union,   28    Ind.   254;    Cawood's 

368;    Hauser   v.  Smith,   13   Ind.  532;  Adm'r  v.  Lee,  32   Ind.  44;    Belton  v. 

Farley  v.  Harvey,  14  Ind.  377;  Napier  Smith,   45   Ind.  291;    Myers,  Ex'r,  v. 

v.  Mayhew,  35  Ind.  276.  The  State,  47  Ind.  293. 


ANSWER.  [CHAP. 

denial  may  be  sworn  to  by  a  party  who  would  not  be  competent  to  tes- 
tify as  a  witness  on  the  trial,  as  in  case  of  an  action  by  an  administrator 
on  a  promissory  note  given  to  the  decedent/ 

585.  Existence  of  corporation  plaintiff. — The  existence  of  a 
corporation  suing  as  such  is  not  put  in  issue  by  the  general  denial.9 
And  the  plaintiff  will  be  presumed  to  be  a  corporation  where  the  name 
in  which  the  action  is  brought  imports  it  to  be  such.1 

The  rule  that  the  existence  of  a  corporation  can  only  be  put  in  issue 
by  a  verified  answer  does' not  apply  where  the  corporation  sues  upon  a 
subscription  made  before  the  organization  of  the  corporation.  In  such 
cases  the  proper  organization  of  the  corporation  is  a  condition  precedent 
to  the  right  to  recover  on  the  subscription,  and  must  be  alleged  in  the 
complaint  and  proved  on  the  trial  under  the  issue  formed  by  the  gen- 
eral denial.-" 

NEW   MATTER— SPECIAL   ANSWERS. 

586.  "What  is  new  matter. — It  is  the  present  purposed,  consider 
the  subject  of  answers  which  are  strictly  defenses  to  the  cause  of  action. 
New  matter  may  amount  to  a  set-off,  which  is  not  strictly  a  defense  to 
the  plaintiffs  cause  of  action,  or  to  a  counterclaim,  which  is  an  inde- 
pendent cause  of  action  on  the  part  of  one  or  mor<s  of  the  defendants/ 
These  will  be  considered  separately.     The  defense  of  new  matter  must 
contain   the  facts   constituting   the   defense,    and   must   be   positively 
pleaded,  as  required  in  case  of  the  complaint.     It  is  not  only  unneces- 
sary but  improper  that  such  an  answer  should  contain  a  denial  of  the 
allegations  of  the  complaint.     The  defense  of  new  matter  is  based 
upon  the  idea  that  the  material  facts  in  the  complaint  are  true,  at  least 
to  the  extent  that  they  constitute  a  cause  of  action  that  must  be  over- 

(r)  Hunter,    Adm'r,   v.    Probst,    47  (t)  The  Adams  Express  Co.  >•.  Hill, 

Ind.  359.  43  Ind.  157;  Jones  v.  The  Cincinnati 

(s)  The  Adams  Express  Co.  v.  Hill,  Type  Foundry  Co.,  14  Ind.  80;   Will- 

4?>  Ind.  157;  The  Indianapolis  Furnace  iams  v.  The  Academical  Ass'n,  26  Ind. 

and  Mining  Co.  v.  Herkimer,  46  Ind.  310;  O'Donald  v.  Thu  Evansville,  etc., 

142;  Cicero  Hygiene  Draining  Co.  v.  R.  R.  Co.,  14  Ind.  259  ;  Stein  v.  Indian- 

Craighead,  28  Ind.  274;  Jones  v.  The  apolis,   etc.,  Ass'n,  18   Ind.  237;    The 

Cincinnati  Type  Foundry  Co.,  14  Ind.  Indianapolis   Sun    Co.'  v     Horrell,   53 

89;  Heaston  v.  The  Cincinnati,  etc.,  R.  Ind.    527;    Cole    v.    The    Merchants' 

R.  Co.,  16  Ind.  275;  The  Board,  etc..  Hank,  60  Ind.  350. 

of  Bartholomew  County  v.  Bright.  18  (u)  Ante,  \  371;  Chance  r,  The  In- 

Ind.  93;  Wert  v.  The  Crawfordsvillc,  dianapolis    etc..  Gravel   Road    Co.,  32 

etc.,  Turnpike  Co.,  19  Ind.  242;    Wiles  Ind.  472;   Wert  v.  The  Crawfordsville, 

v.  The  Trustees  of  Phillips'  Church;  63  etc.,  Turnpike  Co.,  18  Ind.  242. 

Ind.  206.  (v)  Pomeroy's  Rem.,  §  593. 


XV.]  ANSWER.  377 

come  by  independent  matter  constituting  a  defense,  admitting  the  facts 
stated  in  the  complaint  to  be  true.w 

The  rule  at  common  law  was  that  such  a  plea,  which  was  termed 
a  plea  by  way  of  confession  and  avoidance,  must  "  give  color"  by  con- 
fessing the  allegations  contained  in  the  declaration,  either  in  terms  or 
by  implication,  to  be  true.1 

And  it  was  held  that  a  pleading  purporting  to  be  by  way  of  confes- 
sion and  avoidance,  which  did  not  import  a  confession  of  the  adverse 
allegations,  was  insufficient. y 

This  rule  should  be  adhered  to  in  our  practice.  But  while  some  of 
the  authorities  seem  to  recognize  the  rule  under  the  code,  it  is  neither 
adhered  to  in  practice  nor  enforced  by  the  courts.  It  is  not  required 
that  the  answer  in  such  case  should  in  express  terms  confess  the  truth 
of  the  facts  averred  in  the  complaint.  It  is  enough  if  they  are  not 
denied. z 

The  statute  provides  that  "  all  defenses,  except  the  mere  denial  of 
the  facts  alleged  by  the  plaintiff,  shall  be  pleaded  specially."  a 

The  distinction  between  the  denial  and  new  matter  is  clearly  stated 
by  Mr.  Pomeroy :  "  The  overwhelming  weight  of  judicial  opinion  has 
with  almost  complete  unanimity  agreed  upon  the  principle  which  dis- 
tinguishes denials  from  new  matter,  and  determines  the  office  and  func- 
tion of  each.  The  general  denial  puts  in  issue  all  the  material  aver- 
ments of  the  complaint  or  petition,  and  permits  the  defendant  to 
prove  any  and  all  facts  which  tend  to  negative  those  averments,  or 
some  one  or  more  of  them.  Whatever  fact,  if  proved,  would  not  thus 
tend  to  contradict  some  allegation  of  the  plaintiff's  first  pleading,  but 
would  tend  to  establish  some  circumstance,  transaction,  or  conclusion 
of  fact  not  inconsistent  with  the  truth  of  all  those  allegations,  is  new 
matter. 

It  is  said  to  be  new  because  it  is  not  embraced  within  the  statements 
of  fact  made  by  the  plaintiff;  it  exists  outside  of  the  narrative  which 
he  has  given ;  and  proving  it  to  be  true  does  not  disprove  a  single  aver- 
ment of  fact  in  the  complaint  or  petition,  but  merely  prevents  or  destroys 
the  legal  conclusion  as  to  the  plaintiff's  rights  and  the  defendant's  du- 
ties, which  would  otherwise  have  resulted  from  all  those  averments  ad- 
mitted or  proved  to  be  true."  b 

The  new  matter  required  to  be  specially  pleaded,  although  it  in  effect 
admits  the  truth  of  the  allegations  of  the  complaint,  does  not  neces- 
sarily admit  that  the  plaintiff  has  OP  ever  had  a  cause  of  action. 

(w)  McCarty  v.  Roberts,  8  Ind.  150.         (z)   Bliss'  Code  PL,  $  340,  341. 

(x)  Stephen  PI.  200.  (a)  R.  S.  1881,  §  356. 

(y)  Stephen  PI.  200.  (b)  Pomeroy's  Rem.,  §  691. 


378  ANSWER.  [CHAP. 

The  allegations  of  the  answer  may  show  such  a  state  of  facts  as 
would  destroy  the  plaintiff's  original  cause  of  action,  as  in  case  where 
the  new  matter  pleaded  shows  the  contract  to  have  been  illegal,  or  that 
the  promise  of  the  defendant  was  obtained  by  duress ;  therefore,  the 
term  "  new  matter"  does  not  mean  matter  occurring  since  the  cause  of 
action  alleged  in  the  complaint  arose. 

But  the  answer  may  show  that,  by  reason  of  subsequent  occurrences, 
the  plaintiff's  right  of  action,  admitting  it  to  have  existed  originally, 
has  ceased  to  exist,  as  in  case  of  a  release,  payment,  or  the  like. 

MANNER   OF   STATEMENT. 

587.  Defenses  must  be  separately  pleaded  and  numbered. 
— The  answer,  like  the  complaint,  will  be  subject  to  objection,  on  the 
ground  of  duplicity.     The  statute  expressly  provides  that  each  defense 
"shall  be  distinctly  stated  in  a  separate   paragraph,  and  numbered, 
and  clearly  refer  to  the  cause  of  action  intended  to  be  answered." c 

Where  there  are  several  paragraphs  of  complaint,  and  different  de- 
fenses are  pleaded,  each  paragraph  of  the  answer  must  designate  the 
paragraph  of  complaint  to  which  it  is  addressed.  A  cause  of  action 
must  not  be  confessed  and  avoided  and  denied  in  the  same  paragraph.*1 

588.  Answer  may  go  to  part  of  paragraph  of  complaint. — 
It  is  not  necessary  that  a  paragraph  of  answer  setting  up  new  matter 
should,  in  all  cases,  be  a  bar  to  the  entire  cause  of  action  to  which  it 
is  pleaded.     The  answer  may  be  addressed  to  a  part  of  the  cause  of 
action,  and  be  pleaded  as  an  answer  to  such  part.     Such  pleading  is 
authorized  under  the  code,  but  the  answer  must  clearly  point  out  that 
part  of  the  comp'laint  which  it  purports  to  answer,  and  be  confined,  in 
terms,  as  a  defense  to  such  part  only. 

If  the  answer  professes  to  meet  the  whole  complaint,  or  the  whole 
of  any  one  paragraph  of  the  complaint,  when  it  amounts  to  but  a  par- 
tial answer,  it  will  be  subject  to  demurrer.6 

The  number  of  authorities  cited  will  show  how  frequently  the  un- 

(c)  R.  S.  1881,  §347,  sub.  3;  Rose  v.  65;    McClintic's    Adm'r    v.    Cory,   22 
Hurley,  39  Ind.  77;  The  State  v.  Nave,  Ind.    170;    Summers   v.  Vaughan,   35 
69  Ind.  108.  Ind.  323 ;    Trisler   v.  Trisler,  38   Ind. 

(d)  Woollen   tr.  Whitacre,   73   Ind.  282;  Sanders  c.  Sanders,  39  Ind.  207; 
198.  Alvord  v.  Essner,  45  Ind.  156;   Reid  v. 

(e)  Conwell  v.  Finnell,   11  Ind.  527;  Huston,  55  Ind.  173;  Sanders'  Adm'r, 
Smith  v.  Baxter,  13  Ind.  151;  Webb  v.  v.  Loy,  61  Ind.  298;  Lash  v.  Randell, 
Deitch,  17  Ind.  340;  Webb  v.  Deitch,  72  Ind.  475;   Frazee  v.  Frazee,  70  Ind. 
17   Ind.  521;    Dayhuff  v.   Saville,    18  411. 

Ind.  384;  McDougle  v.  Gates,  21  Ind. 


ANSWER.  379 

wary  pleader  loses  the  benefit  of  a  good  answer  to  a  part  of  the  com- 
plaint by  pleading  to  the  whole  cause  of  action.  The  answer  must  bo 
sufficient  to  bar  so  much  of  the  complaint  as  it  professes  to  answer,  or 
it  will  be  insufficient. 

589.  May  confess  and  avoid  'a  part  and  deny  a  part  of 
complaint  in  same  paragraph. — The  rule  is  firmly  settled  that 
the  same  paragraph  of  answer  should  not  both  confess  and  avoid  and 
deny  the  same  allegations  in  the  complaint.     This  would  be  a  plain 
violation  of  the  rule  that  the  defenses  must  be  separately  stated  and 
numbered.     It  frequently  occurs  in  practice,  however,  that  the  defend- 
ant may  deny  and  disprove  some  of  the  facts  stated  as  a  cause  of  ac- 
tion, while,  as  to  others,  they  can  only  be  met  by  matter  in  avoidance. 

Where  this  occurs,  and  both  the  facts  that  are  true  and  those  not 
true  are  material  to  the  cause  of  action,  the  defendant  may,  in  the  same 
paragraph,  set  up  matter  in  avoidance  of  that  which  is  true  and  deny 
that  which  is  false.  This  is  necessary  in  order  to  constitute  a  defense  to 
the  entire  cause  of  action,  and  is  in  fact  but  a  single  defense.  But 
where  the  general  denial  is  pleaded  it  necessarily  puts  in  issue  all  mat- 
ters in  the  complaint  that  are  not  true,  and  the  answer  in  avoidance 
may  be  pleaded  to  such  part  as  may  be  true.  This  would  meet  the  en- 
tire complaint,  but  the  safer  practice  is  to  meet  the  whole  complaint  in 
the  one  paragraph  by  denying  a  part  and  pleading  new  matter  as  to 
the  residue.  Where  this  is  done,  however,  the  pleader  must  confine 
the  matter  in  avoidance,  in  terms,  to  that  part  of  the  complaint  it  is 
intended  to  meet,  and  the  denial  should  go  in  general  terms  to  every 
other  material  allegation  of  the  complaint/ 

590.  Answer  must  state  facts. — The  rule  that  pleadings  must 
state  facts,  applies  to  the  answer  as  well  as  the  complaint.     The  suffi- 
ciency of  the  answer  must  be  determined  by  the  facts  alleged,  and  it 
can  not  be  aided  by  the  averment  of  conclusions  of  law.     It  should  be 
direct  and  positive,  and  not  argumentative. 

591.  Defenses  may  be  inconsistent. — The  question  whether  a 
defendant  may.  plead  several  defenses  that  are  inconsistent  with  each 
other  is  not  well  settled  in  the  different  states.     In  those  states  where 
the  answer  must  be  verified  it  results,  or  should  necessarily  result,  that 
the  defenses  must  be  consistent.     This  was  the  rule  in  equity. 

The  reason  for  requiring  the  answers  in  equity  to  be  truthful  is  ob- 
vious. They  were  in  many  cases  obtained  to  be  used  as  evidence,  and 
required  to  be  made  under  oath.  It  must  be  conceded  that  the  weight 

(f )  Iglehart's  Prac ,  p.  64,  §  52.     But  see  Ponder  v.  Tate,  76  Ind.  1. 


380  ANSWER.  *  [CHAP. 

of  reason,  if  not  of  authority,  is  in  favor  of  the  rule  that  defenses 
should  not  be  contradictory. 

The  object  of  the  code  is  to  arrive  at  the  real  matter  of  contro- 
versy between  the  parties,  and  this  should  be  done  by  requiring  that  a 
defendant  shall  not  plead  one  defense  that  can  only  be  established  by 
disproving  another.8 

But  the  language  of  the  statute  authorizing  the  joinder  of  de- 
fenses is  very  broad  in  its  terms,  and  contains  no  such  limitation  as 
would  prohibit  the  joinder  of  such  defenses  as  are  inconsistent,11  and 
the  Supreme  Court  of  Indiana,  as  well  as  the  courts  of  last  resort  in 
other  states,  have  given  full  force  to  the  language  of  the  statute,  thereby 
authorizing  inconsistent  defenses  to  be  joined.' 

Mr.  Pomeroy,  in  his  work  on  Remedies,  says:  "Assuming  that  the 
defenses  are  utterly  inconsistent,  the  rule  is  established,  by  an  over- 
whelming weight  of  judicial  authority,  that,  unless  expressly  prohib- 
ited by  the  statute,  they  may  still  be  united  in  one  answer.  It  follows 
that  the  defendant  can  not  be  compelled  to  elect  between  such  defenses, 
nor  can  evidence  in  favor  of  either  be  excluded  at  the  trial  on  the 
ground  of  inconsistency.  "j 

This  must  be  regarded  as  the  settled  rule  in  this  state. 

592.  Each  paragraph  must  be  good  within  itself. — The  rule 
that  each  paragraph  of  a  pleading  must  be  good,  without  any  aid  from 
other  parts  of  the  pleading,  is  as  applicable  to  the  answer  as  to  the  com- 
plaint.    Each  paragraph  must  be  good,  standing  as  a  separate  and  dis- 
tinct pleading,  as  an  answer  to  so  much  of  the  complaint  as  it  professes 
to  answer.11 

593.  Equitable  defenses. — One  of  the  results  of  the  provision  of 
the  code  abolishing  the  distinction  between  actions  at  law  and  suits  in 
equity,  as  regards  practice  and  pleading,  is  that  a  defendant  may  in- 
terpose aii  equitable  defense  to  a  common-law  cause  of  action.     And, 
by  the  express  provision  of  the  statute,  such  defenses  may  be  united 

(g)  1  Bates'  Ohio  PI.  and  Par.  140;  Smith,  50,  52;   Hollenbeck  v.  Clow,  9 

Bliss'  Code  PI.,  gg  342,  343,  344.  How.  Pr.  289;  Butler  «.  Wentworth,  9 

(h)  R.  S.  1881,  §  347.  How.  Pr.  282;  17  Barb.  649;  Smith  v. 

(i)  Ante,  §  379;    Vail  v.  Jones,  31  Wells,  20  How.  Pr.  158,  107;  Crawford 

Ind.  467;   Weston  v.  Lurnley,  33  Ind.  v.   Adams,  Stanton's  Code  (Ky.),   91. 

486.     But  .Kee  Hamar  v.  Dimmick,  14  But  see  Sanders  ;-.  Farrell,  83  Ind.  28, 

Ind.  105;  Sanders  v.  Farrell,  83  Ind.  28.  for  a  dicta  that  where  two  inconsistent 

(j)  Pomeroy's    Hem.,   \   722,   citing  defenses  are  pleaded,  one  or  the  other 

Springer  v.  Dwyer,  50  N.  Y.  19;  Buhne  should  be  rejected  on  motion. 

v.  Corbitt,  43  Cal.  264;  Bell  v.  Brown,  (k)  Knarr  c.  Conoway,  42  Ind.  260; 

22  Cal.  671;   Wilson   v.  Cleveland,  30  Potter  v.  Earnest,  45  Ind.  416. 
Cal.    192;    Mutt   v.    Burnett,  2   E.    D. 


XV.]  ANSWER.  381 

with  such  as  would,  under  the  old  practice,  have  been  common-law  de- 
fenses.1 

It  has  been  held,  in  some  of  the  states,  that  a  defendant  can  not 
avail  himself  of  facts  that  would  entitle  him  to  relief  in  equity  as  a 
defense;  but  must,  to  entitle  him  to  any  remedy,  ask  for  and  obtain 
affirmative  relief.  This  is  simply  to  say  that  an  equitable  defense  can 
not  be  interposed  as  a  defense,  but  must  be  resorted  to  as  a  counter- 
claim. This  question  is  thoroughly  considered,  both  by  Mr.  Bliss  and 
Mr.  Pomeroy ; m  and,  while  they  differ  as  to  the  effect  of  the  decided 
cases,  the  conclusion  is  reached,  by  both;  that  the  facts  which  would 
entitle  a  party  to  equitable  relief  may  be  used  as  a  defense  without 
asking  or  receiving  affirmative  relief.  This  must  be  so,  in  this  state, 
by  the  express  provision  of  the  statute.  But,  while  this  is  true,  it  must 
not  be  overlooked  that  the  cases  in  which  an  equitable  right  can  be 
used  as  a  defense  must  be  very  rare. 

Under  the  code,  where  the  party  must  ask  affirmative  relief,  as  in 
case  of  an  action  upon  contract,  where  the  defendant  sets  up  a  mistake, 
the  relief  can  not  be  obtained  by  way  of  defense.  This  would  consti- 
tute a  counterclaim  and  not  a  defense.  In  this  class  of  cases  the 
equitable  right  being  essentially  affirmative  in  its  character,  the  ques- 
tion arises  whether  the  matter  entitling  the  defendant  to  affirmative  re- 
lief can  be  used,  simply  as  a  defense,  which  is  negative  in  its  character. 
Mr.  Pomeroy,  in  commenting  on  this  question,  says:  "  Express  as  Is 
the  language  of  the  statute,. and  well  established  as  is  the  juridical  na- 
ture of  'defense'  in  general,  the  doctrine  has  been  strenuously  main- 
tained, and  is  supported  by  the  decisions  of  respectable  courts  that  a 
defendant  can  not  avail  himself,  as  a  defense,  of  facts  entitling  him  to 
equitable  relief  against  the  plaintiff's  legal  cause  of  action  ;  unless  he 
does  it  by  demanding  and  obtaining  that  specific  remedy  which,  when 
granted,  destroys  the  cause  of  action ;  in  other  words,  he  can  not  invoke 
the  right  as  long  as  he  treats  it  and  relies  upon  it  as  a  defense.*  .  .  . 

"The  error  of  this  doctrine  has  already  been  demonstrated.  A  de- 
fense is  a  negative  resistance,  an  obstacle,  a  something  which  prevents 
a  recovery,  whether  it  be  equitable  or  legal.  If  every  equitable  de- 
fense in  order  to  be  available  must  consist  in  an  affirmative  recovery 
of  specific  relief  against  the  plaintiff,  or  at  least  in  the  right  to  recover 
such  relief,  if  the  defendant  choose  to  enforce  it,  for  exactly  the  same 

(1)  R.  S.  1881,  §  347.  Hicks  v.  Shepard,   4   Lana.   335,  337; 

(m)  Bliss'  Code  PI.,  §  351,  and  note  ;  Cramer  v.  Benton,  60  Barb.  216;  Ken- 

Pom.  Rem.,  §§  90,  91.  yon  v.  Quinn,  41  Cal.  325  ;  Lombard  v. 

(n)  Citing  Fallett  v.  Heath,  15  Wis.  Cowham.  34  Wis.  486,  492;  Dewey  r. 

601;  Conger  v.  Parker,  29  Ind.  380;  Hoag,  15  Barb.  365. 


382  ANSWER.  [CHAP. 

reasons  and  with  exactly  the  same  force,  it  might  be  said  that  every 
legal  defense  in  order  to  be  available  must  consist  of  an  offset  or 
coimterclain."  ° 

The  fallacy  of  this  reasoning  must  be  apparent  at  a  glance.  It  ob- 
literates all  distinction  between  a  defense  and  counterclaim. 

If  the  matter  set  up  entitles  the  defendant  to  affirmative  relief,  he 
becomes  a  plaintiff,  and  his  pleading  can  not  be  regarded  in  any  sense 
as  an  answer.  There  can  be  no  controversy  that  an  equitable  defense 
can  be  interposed  to  a  legal  cause  of  action,  but  the  difficulty  is  to  de- 
termine whether  the  matter  set  up  is  a  defense  or  a  counterclaim. 
This  may  be  illustrated  by  the  familiar  case  of  the  correction  of  a  mis- 
take. The  plaintiff  sues  upon  a  written  instrument,  that  upon  its  face 
entitles  him  to  recover.  The  defendant  sets  up  a  mistake  in  the  instru- 
ment, which,  if  corrected  according  to  the  actual  intention  of  the 
parties,  would  destroy  the  plaintiff's  cause  of  action,  or  furnish  the 
defendant  an  entire  or  partial  defense.  The  right  to  correct  the  mis- 
take is  clearly  equitable,  but  is  it  a  defense  f  Before  the  instrument 
can  be  used  as  a  defense  it  must  be  corrected.  The  right  to  correct  the 
mistake  constitutes  a  cause  of  action  in  favor  of  the  defendant,  "  aris- 
ing out  of  and  connected  with  the  cause  of  action  "  of  the  plaintiff. 

As  such,  it  is  clearly  a  counterclaim.  It  is  not  enough  for  the  de- 
fendant to  prove  the  mistake ;  he  must  ask  to  have  the  instrument 
corrected,  and  there  must  be  an  affirmative  judgment  in  his  favor  cor- 
recting the  mistake. p 

It  is  held  in  this  state  that  the  plaintiff  may,  in  the  same  complaint, 
correct  a  written  instrument,  and  recover  judgment  upon  it  as  cor- 
rected.'1 

But  a  different  question  arises  where  the  defendant  asks  to  correct  a 
mistake  and  use  the  written  instrument,  when  corrected,  as  a  defense. 

There  are  numerous  authorities  in  this  state  holding  that  the  same 
pleading  can  not  perform  the  double  office  of  an  answer  and  cross- 
complaint.1' 

When  this  well-established  rule  is  applied  to  the  case  of  the  correc- 
tion of  a  mistake  in  a  written  instrument,  it  is  difficult  to  see  how  the 
defendant  can,  in  the  same  pleading,  obtain  the  affirmative  relief,  and 
use  the  instrument  as  a  defense.  There  is  no  way  by  which  these  two 

(o)  Pomeroy's  Kem.,  g  91.  (q)  Ante,  §  330;  Riggsby '  v.  Trees, 

(p)  Conger  v.  Parker,  29  Ind.  380;  21  Ind.  227;  Khode  v.  Green,  20  Ind. 

Knarr  v.  Conaway,  42  Ind.  260;  King  83;  King  v.  The   Enterprise  Ins.  Co., 

v.  The   Enterprise   Ins.  Co.,  45   Ind.  45  Ind.  43,  59;   Leedy  v.  Nash,  67  Ind. 

43,58;  Mason  v.  Mason,  102  Ind.  38;  311. 

Vol.  3,  pp.  407,  408.  (r)  Post,  §  677. 


XV.]  ANSWER.  3£3 

lines  of  decisions  can  be  reconciled  with  each  other;  but, the  two  con- 
clusions, however  inconsistent,  are  well  established  by  authority  in  In- 
diana. The  effect  of  these  rules  is  that  the  defendant  may,  as  matter 
of  defense,  aver  and  prove  a  mistake  in  the  instrument  sued  on  by  the 
plaintiff,  but  he  must,  at  the  same  time,  ask  for  and  receive  affirmative 
relief  by  the  correction  of  the  mistake. 

Under  the  code,  the  plaintiff  may  recover  the  possession  of  real  es- 
tate under  an  equitable  title ; "  and  where  the  plaintiff  seeks  to  recover 
upon  a  legal  title,  he  may  be  defeated  by  an  equitable  title  and  right 
u>  possession  thereunder  by  the  defendant.1 

But  where  the  defendant  can  only  recover  through  the  granting  of 
affirmative  relief,  he  must  set  up  the  matter  entitling  him  thereto,  and 
ask  for  such  relief." 


WHAT  MUST  BE  PLEADED  SPECIALLY,  AND  HOW  PLEADED. 

594.  Payment. — It  is  not  intended  to  give  all  of  the  defenses  that 
must  be  specially  pleaded.     This  would  be  impossible.     But  the  at- 
tempt will  be  made  to  give  enough  to  illustrate  fully  what  kinds  of  de- 
fenses fall  within  the  rule  that  new  matter  must  be  specially  pleaded. 

The  defense  of  payment  is  new  matter,  and  must  be  specially 
pleaded.  It  has  been  held,  in  some  cases,  that  where  the  complaint 
contains  such  averments  of  non-payment  that  the  traverse  of  them  is 
equivalent  to  an  allegation  of  payment,  the  general  denial  is  sufficient 
to  authorize  the  proof  of  payment.' 

But  this  is  not  the  law  in  this  state.  Although  the  plaintiff  must 
allege  in  his  complaint  that  the  debt  is  unpaid,  he  is  not  bound  to 
prove  the  allegation,  nor  can  the  defendant  disprove  it,  without  a 
special  answer  of  payment.w 

But  a  plea  of  payment  may  be  sustained  by  proof  of  the  delivery 
of  property  or  any  thing  which  the  creditor  accepted  as  payment.1 
And  proof  of  partial  payment  is  competent  under  the  general  plea.y 

595.  What  plea  of  payment  must  contain. — Payment  may 

(s)   Burt  v.  Bowles,  69  Ind.  1.  Baker  v.  Kistler,  13  Ind.  63;  Louden 

(t)  Hampson  v.  Fall,  64  Ind.  382;  v.  Birt,  4  Ind.  566;  Tilford  v.  Roberts, 

Burt  v.  Bowles,  69  Ind.  1  ;  Graham  v.  8  Ind.  254;  Hart  v.  Crawford,  41  Ind. 

Graham,  55  Ind.  23.  197. 

(u)  Hampson  v.  Fall,  64  Ind.  382.  (x)  Louden    v.    Birt,    4    Ind.   566; 

(v)  Pomeroy's  Kern.,  \  700;  Quinn  "VVok-olt  v.  Ensign,  53  Ind.  70;  Tilford 

v.  Lloyd,  41  N.  Y.  349;  Bliss'  Code  PL,  v.  Roberts,  8  Ind.  254  ;  Hart  v.  Craw- 

$  357,  358.  ford,  Ex'r,  41  Ind.  197. 

(w)  Hubler   v.  Pullen,  9   Ind.  273;         (y)  Ballard  v.  Turner,  08  Ind.  127. 


384  ANSWER.  [CHAP. 

be  alleged  in^general  terms,  without  stating  the  amount,  the  date  of 
payment,  or  the  person  to  whom  payment  was  made.7-  It  was  held,  iii 
an  early  case,  that  the  answer  must  show  to  whom  the  payment  was 
made,8  but  the  later  cases  are  the  other  way.  It  is  not  sufficient  to 
aver  a  payment  of  all  that  was  demanded  at  a  time  prior  to  the  bring- 
ing of  the  suit,  as  the  amount  demanded  may  have  been  less  than  was 
due.b 

The  answer  should  allege  a  payment  in  full  before  the  bringing  of 
the  action.  While  the  defendant  is  not  bound  to  allege  in  his  answer 
to  whom  payment  was  made,  he  may  do  so,  but  if  the  averment  is 
that  the  payment  was  made  to  some  person  other  than  the  holder  of 
the  note,  the  answer  must  show  that  such  person  had  authority  to  re- 
ceive payment,  and  the  facts  showing  such  authority  must  be  stated.0 

Where  payment  is  alleged  to  have  been  made  to  a  former  holder, 
the  answer  must  show  that  such  payment  was  made  before  notice  of 
the  indorsement. d 

'It  is  not  always  necessary,  however,  that  the  defendant  should  either 
allege  or  prove  that  the  party  to  whom  payment  was  made  was  legally 
entitled  to  receive  the  same.  Where  the  payment  has  been  made  in 
good  faith  to  the  holder  of  a  note  made  payable  to  bearer,  the  defend- 
ant will  be  protected,  although  the  title  of  the  holder  may  be  invalid. 
The  rule  is  thus  stated :  "  There  are  some  cases  in  which  payment  to 
a  wrongful  holder  is  protected,  and  others  in  which  it  is  not.  If  a  bill 
or  note  payable  to  bearer,  either  originally  made  so  or  become  so  by 
an  indorsement  in  blank,  be  lost  or  stolen,  a  bona  fide  holder  may  com- 
pel payment.  Not  only  is  the  payment  to  a  bona  fide  holder  protected, 
but  payment  to  the  thief  or  finder  himself  will  discharge  the  maker 
or  acceptor,  provided  such  payment  were  not  made  with  knowledge  or 
suspicion  of  the  infirmity  of  the  holder's  title,  or  under  circumstances 
which  might  reasonably  asvakeu  the  suspicion  of  a  prudent  man.  For 
it  is  a  general  rule  that,  where  ooe  of  two  innocent  persons  must  suffer 
from  the  acts  of  a  third,  he  who  has  enabled  such  third  person  to  oc- 
casion the  loss  must  sustain  it.  And,  supposing  the  equity  of  the  loser 
aud  payer  precisely  equal,  there  is  no  reason  why  the  law  should  in- 
terpose to  shift  the  injury  from  one  innocent  man  upon  another.  But 
if  such  a  payment  be  made  under  suspicious  circumstances,  or  without 
reasonable  caution,  or  out  of  the  usual  course  of  business,  it  will  not, 

(z)   Wolcott  v.  Ensign,  53  Tnd.  70;         (c)  Maynard  v.  Black,  41  Ind.  310. 
Demuth  v.  Daggy,  26  Ind.  341.  (d)  Helms    v.    Sisk,    8    Rlkf.    503; 

(a)  Nill  v.  Comparet,  15  Ind.  243.         Woodward  v.  Elliott,  13  Ind.  516. 

(b)  Toledo   Agricultural    Works   v. 
Work,  70  Ind.  253. 


XV.]  ANSWER.  385 

as  between  all  parties,  and  for  all  purposes,  discharge,  the  payer."* 
But  where  the  facts  are  known,  payment  must  be  made  to  the  real 
proprietor  or  his  agent.f(l) 

596.  Payment  after  suit  brought. — Payment  made  after  the 
suit  is  brought  can  not  be  pleaded  in  bar  of  the  action.     It  has  been 
held  that  such  payment  may  be  proved  in  mitigation  of  damages." 

But  the  defendant  may  plead  payment  of  the  debt  after  the  suit  i~ 
brought,  not  in  bar  of  the  action,  but  in  bar  of  the  ''further  mainten- 
ance of  the  action."  h 

Such  an  answer  could  not  go  in  bar,  for  the  reason  that  an  answer 
in  bar  must  relate  to  the  time  the  action  was  commenced.  (2) 

597.  Payment  of  less  than  is  due. — As  a  rule,  the  payment  of 
less  than  is  due  the  creditor,  will  not  discharge  the  debt,  although  the 
creditor  may  consent  at  the  time  to  accept  the  amount  in  full  satis- 
faction of  his  demand,  and  give  a  receipt  in  full.1     But  this  rule  is 
subject  to  exception.-1 

The  rule,  with  its  exceptions,  is  stated  in  the  case  of  Fensler  v. 
Prather,  Downey,  J. :  "  Payment  of  a  smaller  sum  in  satisfaction  of  a 
greater  liquidated  debt,  only  operates  as  a  discharge  pro  tanto,  and  can 
not,  in  law,  discharge  the  whole  debt  without  some  valid  consideration 
for  abandoning  the  residue.  But  payment  of  a  smaller  sum  may 
amount  to  a  discharge  of  a  larger  debt,  where  it  is  made  under  a  valid 
agreement  to  that  effect ;  as  where  it  is  agreed  to  be  paid  at  an  earlier 
day,  where  it  is  agreed  to  be  paid  by  a  third  party,  or  where  it  is  paid  as 
a  composition  for  the  debt  under  an  arrangement  between  the  debtor  and 
his  creditors.  Payment  of  a  smaller  sum  in  satisfaction  of  a  larger 
amount  claimed  for  an  unliquidated  demand  may  operate  as  a  valid 
discharge ;  so  payment  of  a  smaller  sum  under  an  agreement  to  aban- 
don a  defense  to  an  action,  and  pay  costs,  may  be  pleaded  in  satisfaction 
of  a  larger  demand."  k 

Where  the  amount  paid  is  less  than  the  debt,  the  fact  showing  that 
it  was  paid  under  such  circumstances  as  to  amount  to  a  discharge  may 

(e)  Byles  on    Bills,  6th  ed.  p.  343;  (i)  Marker's    Adm'r     v.     Spitler's 
Vanarsdallr.  Watson,  65  Ind.  176, 180.  Adm'r,  28  Ind.  488;  Maxwell  v.  Day, 

(f)  Woodwards.  Elliott,  13  Ind. 516.  45  Ind.  509. 

(g)  Bischoff    v.    Lucas,    6    Ind.  26;  (j)   Fenslrr  v.  Prather.  43  Ind.  119, 
The  Bank  v.  Brackett,  4  N.  H.  557.  122;   Maxwt-il    r.    Day,   45    Ind.   509; 

(h)  Herod  v.  Snyder,  61  Ind.  453.          Ogborn  v.  Hoffman,  52  Ind.  439. 

(1)  For  form  of  answer,  see  Vol.  3,         (k)  Citing  Leake  Law  of  Con.  474, 
p.  390.  475. 

(2)  For  form  of  answer,  see  Vol.  3, 
p.  391. 

25 


386  ANSWER.  [CHAP. 

be  proved  under  the  general  plea  of  payment,  but  the  facts  may  be 
specially  pleaded.  (1) 

598.  Accord  and  satisfaction. — Accord  and  satisfaction  is  new 
matter,  and  must  be  specially  pleaded.  It  is  in  the  nature  of  payment. 
The  answer  of  accord  and  satisfaction  sets  up  a  new  contract,  and  its 
performance  in  discharge  of  the  original  contract.1 

It  is  not  sufficient  to  allege  the  new  contract  or  the  accord  as  it 
is  termed.  The  answer  must  show  satisfaction  by  alleging  the  perform- 
ance of  the  new  contract  by  the  defendant."1 

It  was  held  in  some  of  the  earlier  cases  in  this  state,  that  in  actions  of 
assumpsit,  accord  and  satisfaction  could  be  proved  under  the  general 
denial." 

But  this  is  not  the  rule  under  the  code,  as  it  is  not  matter  which 
tends  to  negative  the  allegations  of  the  complaint.0 

The  distinction  between  payment  and  accord  and  satisfaction  has 
been  almost  entirely  obliterated  by  the  decided  cases  in  Indiana.  The 
question  whether  under  a  plea  of  payment  a  defendant  may  prove 
an  accord  and  satisfaction  has  not,  it  is  believed,  been  directly  decided. 
It  has  been  held,  however,  that  payment  may  be  made  in  any  thing 
that  the  creditor  will  accept  in  payment. p 

What  is  this  but  accord  and  satisfaction  ?  It  has  been  held  in  a 
later  case  that  an  answer  setting  up  that  a  debt  had  been  paid  ' '  in 
goods,  wares,  and  merchandise,  which  was  so  received,"  was  good,  both 
as  an  answer  of  payment  and  accord  and  satisfaction. q 

It  is  difficult  to  see  how  one  answer  could  be  sufficient  both  as  a  plea 
of  payment  and  accord  and  t  satisfaction.  Payment  is  a  performance 
of  the  original  contract,  while  accord  and  satisfaction  is  the  making 
of  a  new  contract  and  a  performance  thereof.  The  latter  must  have 
all  the  elements  of  a  new  and  independent  contract/ 

The  cases  holding  that  payment  may  be  made  in  any  thing  that  the 
creditor  will  accept  does  not  confine  the  time  of  the  agreement  to  the 
original  contract.  If  the  creditor,  as  a  part  of  the  original  contract, 
agrees  to  take  something  other  than  money  in  payment,  the  delivery 

(1)  For  form  of  answer,  see  Vol.  3,  p.  339. 

(1)  2  Par.  on  Con.,  p.  681.  (o)  R.  S.   1881,   gg  356,   377;    Bliss' 

(m)  Woodruff  v.  Dobbins,   7    Blkf.  Code  PI.,  §  352;  Pomeroy's  Rem  ,  ?  71'2. 

582;  Deweese  v.  Cheek,  35  Ind.  514;  (p)  Ante,  §  594;   Louden  v.  Birt,  4 

Coquillard's  Adm'r  v.  French,  19  Ind.  Ind.  566;    Tilford  v.  Roberts,  8   Ind. 

274;   Harbor  v.  Morgan,  4   Ind.  158;  254. 

Prather  v.  The  State  Bank,  3  Ind.  356.  (q)  Hart  v.  Crawford,  EXT,  41  Ind. 

f  n)   Burge  v.  Dishman,  5  Blkf.  272;  197;   Wolcott  v.  Ensign,  53  Ind.  70 

Page  v.  Prentice,  7  Blkf.  322;  Louden  (r)  2  Parsons'  Contracts,  p.  681. 
v.  Birt,  4  Ind.  666. 


XV.]  ANSWER.  387 

of  the  property  agreed  to  be  accepted  should  be  sufficient  as  a  pay- 
ment, and  "a  tender  of  the  same  would  be  a  sufficient  tender.  But 
where  the  creditor  agrees,  at  a  subsequent  time,  to  accept  something 
else  in  payment,  when  by  his  contract  he  is  entitled  to  demand  pay- 
ment in  money,  it  is  an  accord,  and  where  the  property  is  delivered 
and  accepted  it  is  an  accord  and  satisfaction  and  not  a  payment.  The 
two  are  so  essentially  different  that  proof  of  one  should  not  be  per- 
mitted under  a  plea  of  the  other. 

As  to  what  will  amount  to  an  accord  and  satisfaction,  see  the  cases 
cited  in  the  foot-note.8 

Where  the  amount  due  upon  the  debt  is  liquidated,  and  there  is  no 
controversy  between  the  parties  as  to  the  amount  due,  a  payment  of  a 
less  amount  does  not  amount  to  an  accord  and  satisfaction,  although 
the  creditor  may  agree  to  accept  the  lesser  amount  and  actually  re- 
ceive the  same. 

But  where  there  is  a  dispute  about  the  amount  due,  and  the  creditor 
accepts  less  than  is  actually  due  to  avoid  litigation,  or  where  the 
amount  is  paid  before  the  debt  is  due,  or  some  other  consideration  of 
loss  to  the  debtor  or  benefit  to  the  creditor  is  the  cause  for  accepting 
the  smaller  amount,  it  is  sufficient  and  will  discharge  the  debt.1 

599.  Arbitration  and  award. — Arbitration  and  award  must  be 
pleaded  specially.11 

The  arbitration  may  be  a  statutory  or  common-law  arbitration,  the 
difference  being  that  to  comply  with  the  statute  the  parties  must  make 
the  submission  a  rule  of  some  designated  court,  and  the  submission 
must  be  by  an  instrument  in  writing.7 

Where  the  answer  attempts  to  set  up  a  statutory  arbitration,  the 
facts  showing  the  submission,  and  other  steps  taken  to  be  in  accordance 
with  the  requirements  of  the  statute,  must  be  stated.  The  submission 
and  award  should  be  made  part  of  the  answer,  whether  the  arbitration 
is  one  under  the  statute  or  at  common  law.  If,  however,  the  answer 
is  pleaded  as  a  statutory  arbitration,  and  fails  to  allege  such  facts  as 

(s)  Neil  v.  Comparet,  15  Ind.  243;  Stone  v.  Lewman,28  Ind. 97;  Markell's 

Adamson  v.  Rose,  30  Ind.  380;  Han-  Adm'r  v.  Spitler's    Adm'r,  28   Ind. 

cock  v.  Morgan,  34  Ind.  524;  Kingan  488;  Vol.  3,  p.  339. 
v.  Gibson,  33  Ind.  53;  Stone  v.  Lew-        (u)  Brown  v. Perry,  14  Ind.  32. 
man,  28  Ind.  97;  Ogborn  v.  Hoffman,        (v)  Estep    v.    Larsh,    16    Ind.    82; 

52  Ind.  439;  The  Evansville,  etc.,  K.  Francis  v.  Ames,  14  Ind.  231  ;  Forque- 

R.  Co.  v.  Wright.  38  Ind.  64;  Pontius  ron  v.  Van  Meter,  9  Ind.  270;  Hedrick 

v.  Durflinger,  59  Ind.  27.  v.  Judy,  23  Ind.  548;  Hawes  v.  Coombs, 

(t)  Ogborn  v.  Hoffman,  52  Ind.  439;  34  Ind.  455;   Boots  r.  Canine,  58  Ind. 

450,  457;   Healy  v.  Isaacs,  73  Ind.  226, 


388  ANSWER.  [CHAP. 

will  render  it  sufficient  under  the  statute,  the  answer  will  still  be  suffi- 
cient if  it  shows  a  valid  and  binding  common-law  arbitration. w 

It  is  held  that  in  case  of  a  statutory  arbitration  the  parties  are  not 
bound  by  the  award  made  until  the  same  has  been  duly  confirmed  by 
the  court  designated  in  the  submission.* 

The  first  case  cited  was  one  in  which  the  action  was  brought  upon 
the  arbitration  bond.  A  different  rule  might  prevail  where  the  arbi- 
tration is  set  up  as  a  defense.  The  parties  are  bound  by  the  submis- 
sion, and  have  no  power  to  revoke  the  same  after  the  arbitrators  are 
sworn, y  and  from  that  time,  if  not  from  the  time  of  the  submission,  the 
defendant  should  be  allowed  to  defend  against  the  original  cause  of 
action.  It  is  not  necessary  that  the  defendant  should  show  in  his  an- 
swer that  the  award  has  been  performed  on  his  part.z(l) 

600.  Want  of  consideration. (2)  Where  the  contract  is  such  that 
it  imports  a  consideration,  it  need  not  be  alleged  in  the  complaint,  and 
the  want  of  consideration  must  be  affirmatively  pleaded  in  answer.3 

But  where  the  contract  does  not  import  a  consideration  it  must  be 
alleged  in  the  complaint  and  the  issue  is  formed  by  the  general 
denial.1" 

It  has  been  held,  also,  that  where  the  complaint  sets  out  specifically, 
the  consideration,  although  such  allegations  were  unnecessary,  proof 
of  want  of  consideration  may  be  given  under  the  general  denial.0 

The  answer  of  want  of  consideration  may  be  pleaded  in  general 
terms. d 

Where  an  entire  want  of  consideration  is  pleaded,  it  is  not  supported 
where  any  consideration  is  shown,  however  small.6  But  a  partial  want 
of  consideration  may  be  pleaded  under  the  statute. 

It  is  not  sufficient  to  allege  that  the  instrument  sued  on  was  given 
without  any  consideration  to  the  defendant,  as  the  consideration  may 

(w)  Hawes  v.  Coombs,  34  Ind.  455;  son  v.  Howard,  44  Ind.  413;  Mitchell 

Boots  v.  Canine,  58  Ind.  450.  v.  Sheldon,  2  Blkf.  185;  Bingham  v. 

(x)  Shroyer  v.  Bash,  57  Ind.  349;  Kimball,  17  Ind.  396;  Uobinson  v. 

Healy  v.  Isaacs,  73  Ind.  226.  Barbour,  5  Blkf.  468. 

(y)  Shroyer  v.  Bash,  57  Ind.  349;  (b)  Bush  v.  Brown,  49  Ind.  573; 

Bash  v.  Christian,  MS.  Case  No.  7,413,  Pom.  Rera.,§  709;  Bliss'  Code  PI.,  §  330. 

Dec.  20,  1881.  (c)  Butler  v.  Edgerton,  15  Ind.  15. 

(z)  Walters  v.  Hutchins,  29  Ind.  136.  (d)  Con  well  v.  Clifford,  45  In  d.  392; 

(1  Form  of  answer,  Vol.  3,  pp.  354,  Swope  v.  Fair,  18  Ind.  300;  Earner  v. 

355.  Morehead,  22  Ind.  854;  Bu-hf.  Brown, 

(2)  Form  of  answer,  Vol.  3,  p.  341.  49  Ind.  573;   Billan  v.  Ilerklebrath,  23 

(a)  R.  S.  1881,  §  366;  ante,  §  402;  Ind.  71;  Kernodle  v.'Hunt,  4  Blkf.  57. 

Cowry  v.  Shane,  44  Ind.  495;  Frybor-  (e)  Crow  v.  Eichingor,  34  Ind.  65; 

.ger  v.  Cockefair,  17  Ind.  404;  Phil-  Smock  v.  Pierson,  Exr.,  68  Ind.  405; 

brooks  v.  McEwen,  29  Ind.  347;  Bee-  "Wheelock  v.  Barney,  27  Ind.  462. 


XV.]  ANSWER.  389 

have  moved  to  a  third  party,  which  would  make  it  equally  binding 
upon  him  if  done  at  his  instance/ 

Want  of  consideration  can  not  be  pleaded  to  an  action  on  a  judgment 
rendered  in  this  state. g 

601.  Who  may  plead  want  of  consideration. — It  is  not  every 
party  to  a  written  instrument  that  can  successfully  plead  a  want  of 
consideration.     This  can  always  be  done  between  the  maker  and  payee 
of  a  promissory  note. h 

And  the  consideration  of  a  bill  of  exchange  may  be  inquired  into  by 
the  drawer  against  the  payee,  by  the  payee  against  the  indorsee,  and 
by  the  acceptor  against  the  drawer.1 

But  the  acceptor  can  not  plead  want  of  consideration  as  against  the 
payee.-" 

The  right  to  plead  want  of  consideration,  in  defense  of  an  action  on 
an  instrument  negotiable  by  the  law  merchant,  is  confined  to  such  as 
have  been  negotiated  after  maturity. k 

If  the  instrument  is  negotiated  before  the  same  becomes  due,  want 
of  consideration  is  no  defense  against  the  indorsee  when  he  took  the 
note  for  a  valuable  consideration  in  due  course  of  business  and  without 
notice  of  the  defense.1 

It  is  otherwise  in  case  of  instruments  negotiable  by  statute.  Against 
such  an  instrument  the  defendant  may  make  the  same  defense  against 
the  indorsee  that  he  might  have  made  in  an  action  by  the  payee.  The 
vendee  of  real  estate,  who  purchases  subject  to  or  assumes  the  payment 
of  a  mortgage,  can  not  defeat  the  same  on  the  ground  of  want  of  con- 
sideration.m 

602.  Illegal  consideration. — The  defense  of  illegal  consideration 
must  be  specially  pleaded." 

The  illegality  may  extend  to  the  whole  or  only  a  part  of  the  consider- 
ation. If  the  contract  is  entire,  a  plea  that  a  part  of  the  consideration 
is  illegal  will  bar  the  action,  and  the  same  is  true  where  the  considera- 
tion is  inseparable.  But  where  the  contract  may  be  separated,  and  the 
legal  consideration  applied  and  the  illegal  portion  separated  and  disre- 
garded, the  answer  of  partial  illegality  will  not  bar  the  action,  nor 

(f )  Bingham   v.    Kimball,   33   Ind.  (j)  Spurgin  v.  McPheeters,  42  Ind. 
184;  Anderson  v.  Meeker,  31  Ind.  245.  527. 

(g)  Brown,  Ex'r,  v.  Trulock,  4  Blkf.  (k)  R.  S.  1881,  §  366. 
429.  (1)  Post,  §650. 

(h)  Ballard  v.  Turner,  58  Ind.  127.  (m)  Price  v.  Pollock,  47  Ind.  302. 

(i)  Spurgin  v.  McPheeters,  42  Ind.  (n)  Casad  r.  Holdridge,  50  Ind.  529. 
527. 


390  ANSWER.  [CHAP. 

could  an  answer  alleging  that  the  entire  consideration  is  illegal  be 
supported  by  proof  showing  such  a  state  of  facts.0 

Illegality  of  consideration  can  not  be  pleaded  generally.  The  facts 
show  in  ir  in  what  the  illegality  consists  must  be  stated.  In  this  the 
answer  differs  from  a  plea  of  want  of  consideration.  There  the  alle- 
gation is  negative — that  there  is  no  consideration — while  the  illegality 
is  affirmative ;  and  the  simple  allegation  that  the  consideration  is  illegal 
would  be  nothing  more  than  a  conclusion. (1) 

603.  Failure  of  consideration. — Failure  of  consideration  is  u 
good  defense.     The  answer  differs  materially  from   that  of  want  of 
consideration.     It  is  not  sufficient  to  allege,  generally,  that  the  con- 
sideration has  failed.     The  facts  showing  how  it  has  failed  must  be 
specifically  set  out.     The  answer  should  show  what  the  consideration 
was,  if  not  alleged  in  the  complaint,  followed  by  the  facts  showing  the 
failure. p     If  the  complaint  shows  specifically  what  the  consideration 
was  it  need  not  be  alleged.     As  the  answer  must  state  the  facts,  if  it 
professes  to  answer  the  whole  complaint  the  facts  alleged  must  show 
an  entire  failure  of  consideration  or  it  will  be  bad.q(2) 

As  to  what  will  amount  to  a  failure  of  consideration,  see  the  authori- 
ties cited  in  the  foot  note/ 

604,  Partial  failure  of  consideration. — The  statute  authorizes 
the  defendant  to  plead  a  partial  failure  of  consideration.8     The  proof 
of  a  partial  failure  may  be  given  under  the  plea  of  a  total  failure  of 
consideration.1 

But  as  the  facts  showing  either  the  failure  or  partial  failure  must  be 
specifically  alleged,  it  is  much  safer  where  the  facts  are  not  sufficient 

(0)  Hynds    v.    Hays,   25    Ind.    31;     Toledo,  etc.,  K.  R.  Co.,  27   Ind.  365; 
Gamble  v.  Grimes,  2  Ind.  392;  Ever-     Miller  v.  Gibbs,  29  Ind.  228;   Numbers 
hart  v.  Puckett,  73  Ind.  409.  v.  Bowser,  29  Ind.  491 ;  Henrys.  Riten- 

(1)  Form  of  answer,  Vol.  3,  p.  355.     our,  31  Ind.  136;  Moorehead  v.  Mur- 
(p)  Garrett  v.  Heaston,  5  Blkf.  349;     ray,  31  Ind.  418;    Mooklar  v.  Lewis,  40 

Applegute   v.    Crawford,    2   Ind.  579;  Ind.  1 ;  Stanford  v.  Davis,  54  Ind.  45; 

Smith  v.  Baxter,  13  Ind.  151;  Billan  v.  Haskett  v.  Elliott,  58  Ind.  493;  Barnes 

Hercklebrath,   23    Ind.    71;    Lane  v.  v.  Stevens,  62  Ind.  226;   Moss  v.  The 

Whitt;house,    46    Ind.   389;    Swope  v.  Witness    Printing   Co.,  64   Ind.   125; 

Fair,  18  Ind.  300;  Webster  v.  Parker,  Reagan  v.  Burton,  67  Ind.  347;  Beck- 

7    Ind.    185;     Moss    v.  The   Witness  ner  v.  Willson,  68  Ind.  533. 

Printing  Co.,  64  Ind.  125.  (a)  R.  S.  1881,  §  366. 

(q)  Tyler  v.  Borland,  17  Ind.  298.  (t)  Landry,   Adm'r,  v.  Durham,  21 

(2)  Form  of  answer,  Vol.  3,  p.  356.  Ind.  232;    Billen   v.  Hercklebrath,  23 
(r)  Muchmorer.  Bates,  1  Blkf.  248;  Ind.  71;   Sinex  v.  The  Toledo,  etc.,  R, 

Kernodle  v.  Hunt,  4    Blkf.  57;   Will-     R.  Co.,  27  Ind.  365. 
iams  v.  Rank,  1  Ind.  230 ;  Sinex  v.  The 


XV.]  ANSWER.  391 

to  show  an  entire  failure,  to  limit  the  answer  by  express  terms,  to 
that  part  of  the  complaint  covered  by  the  facts  pleaded,  or  that  part 
of  the  consideration  shown  by  the  facts  to  have  failed.  A  partial 
failure  of  consideration  only  avoids  the  cause  of  action  pro  tanto,  and 
if  the  answer  is  pleaded  in  terms  to  the  whole  complaint  it  will  be 
bad  on  demurrer." 

605.  Former  adjudication.fi)  A  former  recovery  can  only  be 
proved  when  the  facts  showing  such  recovery  are  specially  pleaded.* 
It  was  held  in  some  of  the  earlier  cases  that  the  answer  must  set  out 
the  record  of  the  former  suit.w  But  the  supreme  court  has  since  held 
that  a  judgment,  the  foundation  of  the  action  or  defense,  is  not  within 
the  statute  requiring  written  instruments  to  be  made  part  of  the 
pleading.1 

The  rule  thus  established  applies  to  the  answer  of  former  adjudica- 
tion.y 

The  answer  must  show  that  the  parties  suing  in  the  present  action 
were  either  parties  to  the  former  action  or  that  they  claim  through  such 
parties.2 

When  it  is  said  that  the  parties  must  be  the  same,  it  must  not  be 
understood  that  all  of  the  parties  in  the  former  action  must  be  parties 
to  the  present  suit.  Issues  may  be  joined  between  defendants  on  a 
cross-complaint,  or  between  a  part  only  of  the  defendants  and  the 
plaintiffs,  either  upon  the  original  complaint  or  a  counterclaim.  In 
such  case,  if  the  parties  to  such  issue  are  the  same,  as  between  them, 
the  answer  will  be  sufficient.* 

It  is  not  necessary  that  the  form  of  action  or  the  subject-matter 
should  be  the  same.b 

(u)  Gamble  v.  Grimes,  "2  Ind.  392;  v.  Randolp,  48  Ind.  496;  McSweeney 

Webster  v.  Parker,  7  Ind.  185;  Cald-  v.  Carney,  72  Ind.  430. 

well  v.  The  Bank  of  Salem,  20  Ind.  294.  (z)  The  State  v.  Page,  63  Ind.  209  ; 

(v)  Picquet  v.  McKay,  2  Blkf.  465;  Dixon  v.  Hunter,  57  Ind.  278;  Morri- 

Brady  v.  Murphy,  19  Ind.  258.  son  v.  Fishel,  61  Ind.  177;    Elliott  v. 

(w)  Norris   v.  Ames,    15    Ind.  365;  Frakes,  71  Ind.  412;    Kramer  v.  Ma- 

Robbins  v.  Dishon,  19  Ind.  204;   Pruitt  thews,  68  Ind.  172;  The  State  v.  Hud- 

v.  Cox,  21  Ind.  15;  Williamson  v.  Fore-  son,  37  Ind.  198;  The  Columbus,  etc  , 

man,  23  Ind.  540;  Kingle  v.  Weston,  R.  R.  Co.  v.  Watson,  26  Ind.  60;   Polley 

23  Ind.  588.  v.  Wood,  30  Ind.  407. 

(x)  Ante,  §  417,  and  cases  cited;  Ly-  (a)  Davenport  v.  Barnett,  61    Ind. 

tier.  Lytle,  37  Ind.  281.  329;  Greenup  v.  Crooks,  50  Ind.  410; 

(y)  Campbell  v.  Cross,  39  Ind.  155;  Richardson  v.  Jones,  58  Ind.  240. 

Davenport  r.   Barnett,   51    Ind.    329;  (b)  Freeman  on  Judg.,  ?§  253,  2-Vi, 

Wilson  v.  Vance,  Adm'r,  55  Ind.  584 ;  259. 

Mull  t-.  McKnight,  67  Ind.  525;  Allen  (1)  Forms   of   answer,  Vol.  3,   pp. 

366,  367. 


392 


ANSWER. 


[CHAP. 


It  is  said  that  "  the  best  and  most  invariable  test  as  to  whether  a 
former  judgment  is  a  bar,  is  to  inquire  whether  the  same  evidence  will 
sustain  both  the  present  and  the  former  action.  If  this  identity  of  evi- 
dence be  found,  it  will  make  no  difference  that  the  form  of  the  two  ac- 
tions is  not  the  same."c 

The  answer  must  show  by  the  proper  averments  that,  the  matter  set 
up  in  the  present  action  was  within  the  issues  in  the  former  suit.d 

It  is  not  necessary,  however,  that  the  matters  in  controversy  were 
actually  litigated.  It  is  enough  to  show  that  they  were  within  the 
issues  and  might  have  been  litigated.6 

But  it  is  held  that  the  opposite  party  may  show  that  although  the 
matters  now  in  controversy  were  within  the  issues  they  were  not  liti- 
gated/ 

A  judgment  on  demurrer  may  be  pleaded  in  bar  of  another  action 
where  it  appears  on  the  face  of  the  record  that  the  merits  were  de- 
cided on  the  demurrer.8 

It  is  held  in  some  cases  that  such  a  judgment  is  not  a  bar.h 

It  is  not  necessary  that  the  answer  should  show  that  the  judgment 
pleaded  is  still  in  force.  That  it  is  not  in  force  is  matter  of  reply.' 


(c)  Freeman  on  Judg.,  §  259,  citing 
Kitchen   v.  Campbell,    13  Wils.  304; 
Clegg    v.    Dearden,    12    Q.    B.    576; 
Crockett  r.  Routon,  Dudley,  254;  Hun- 
ter  v.  Stewart,  31    L.  J.  Chanc.  346; 
Taylor  v.  Castle,  42  Cal.  371 ;  Cannon 
v.  Brame,  45  Ala  262 ;  Percy  v.  Foote, 
36  Conn.  102;  Ramsey  v.  Herndon,  1 
McL.  450;   Martin  v.  Kenedy,  2  Bos. 
&  Pul.  71 ;  Duncan  v.  Stokes,  47  Geo. 
595.     See,  also,  Cutler  v.  Cox,  2  Blkf. 
178;  Hereth  v.  Yandes,  34  Ind.  102; 
Campbell  v.  Cross,  39  Ind.  155 ;  Reeves 
v.  Plough,  46  Ind.  350;  Reid  v.  Huston, 
55  Ind.  173;  Turner  v.  Allen,  66  Ind. 
252;  Green  v.  Glynn,  71  Ind.  336. 

(d)  Kramer    v.   Mathews,   68    Ind. 
172;    Foster   v.  Konkwright,    70  Ind. 
123;  Roberts  v.  Robeson,  27  Ind.  454; 
Patterson     v.    Jones,     27     Ind.    457; 
Bougher  v.  Scoby,  21  Ind.  365;  Hagus 
P.  Goodman,  12  Ind.  629;  Duncan  v. 
Holcomb,  26   Ind.  378 ;    The  State  ». 
Page,  63  Ind.  209;  Smith  v.  Scantling, 
4   Blkf.   443;    Walker   ?;.   Houlton,   5 
Blkf.  348;  Haller  v.  Pine,  8  Blkf.  175; 


Stingley  v.  Kirkpatrick,  8  Blkf.  186; 
Athearn  v.  Brannan,  8  Blkf.  440;  Byr- 
ket  v.  The  State,  3  Ind.  248;  Leach  r. 
Leach,  10  Ind.  271;  Maloiiey  r.  Grit- 
fin,  15  Ind.  213;  The  Indianapolis, 
etc.,  R.  R.  Co.  v.  Clark,  21  Ind.  150; 
Day  v.  Vallette,  25  Ind.  42;  Nave  v. 
Wilson,  33  I»d.  294;  Harvey  v.  Os- 
born,  55  Ind.  535;  Winnimjhum  i\ 
The  State,  56  Ind.  243;  Jenkins  c. 
Jenkins,  63  Ind.  120;  McSweeney  v. 
Carney,  72  Ind.  430. 

(e)  Fischli   v.  Fischli,  1    Blkf.  360; 
The  Columbus,  etc .,  R.  R.  Co.  v.  Wat- 
son, 26  Ind.  50;  Shaw  v.  Barn  hart,  17 
Ind.  183;   Griffin  v.  Wallace,  66  Ind. 
410,  415;  Green  v.  Glynn,  71  Ind.  336; 
Kritsinger  v.  Brown,  72  Ind.  406. 

(f)  Bottorff   v.   Wise,   53   Ind.   32; 
Walker  v.  Houlton,  5  Blkf,  348. 

(g)  Estep    v.    Larsh,    21    Ind.    190; 
Wilson  v.  Ray.  24  Ind.  156. 

(h)  Stevens  p.   Dun  bar,  1   Blkf.  56; 
Sherry  p.  Fores-man.  6  Blkf.  56. 

(i)  Mull  v.  JMcKnight,  67  Ind.  525. 


XV.  ]  ANSWER.  393 

But  where  the  answer  shows  upon  its  face  that  the  judgment  is  not 
in  force,  by  reason  of  its  being  reversed,  or  that  it  never  was  a  valid 
judgment  by  reason  of  its  having  been  rendered  by  a  court  having  no 
jurisdiction,  it  will  be  subject  to  demurrer. J 

It  has  been  held  that  in  an  action  on  a  penal  bond  it  is  a  sufficiem 
answer  that  the  penalty  of  the  bond  has  been  exhausted  by  other  par 
ties  entitled  to  sue  thereon. k 

A  judgment  against  one  joint  contractor  may  be  pleaded  in  bar  of 
an  action  against  the  other.1 

But  not  where  the  contract  is  several  or  joint  and  several. 

The  answer  must  show  that  the  judgment  pleaded  was  a  final  judg- 
ment on  the  merits." 

It  is  held  in  some  of  the  cases  that  if  the  cause  of  action  is  not  the 
same  it  must  be  pleaded  by  way  of  reply.0 

But  it  is  necessary  that  the  answer  should  show  that  the  same  issue 
was  presented  in  the  former  action,  and  any  evidence  tending  to  show 
that  it  is  not  the  same  would  undoubtedly  be  admissible  under  the  gen- 
eral denial.  It  goes  directly  to  negative  the  material  allegations  of 
the  answer. 

A  judgment  recovered  against  the  maker  of  a  promissory  note  as 
garnishee  may  be  pleaded  in  bar  of  an  action  by  the  assignee  of  the 
note,  if  the  judgment  is  rendered  before  notice,  by  the  maker,  of  the 
assignment.15 

Former  adjudication  may  be  pleaded  to  a  part  of  the  complaint, 
and  when  so  pleaded  it  must  be  confined,  in  terms,  to  such  parts  as 
were  within  the  issues  in  the  former  action.  The  answer  may  plead 
former  adjudication  to  a  part  and  deny  the  residue  of  the  cause  of  ac- 
tion in  the  same  paragraph.*1 

Under  the  statute  requiring  the  defendant  who  has  been  personally 
served  with  process  to  set  up  his  counterclaim  under  the  penalty  of 
paying  the  cost  of  a  subsequent  action  thereon,  the  facts  must  be 
pleaded  by  way  of  answer/ 

If  it  appears  that  the  party  against  whom  the  former  judgment  is 

(j)  Smock  v.  Graham,  1  Blkf.  314.  (o)  James  v.  The  State,  7  Blkf.  325; 

(k)  The  State  v.  Ford,  5  Blkf.  392.  Brandon  v.  Judah,  Adm'r,  7  Ind.  545. 

(1)  Taylor  v.  Claypool.  5  Blkf.  557;  (p)  Covert  v.  Nelson,  8  Blkf.  265. 

Kobinson  r.  Snyder,  74  Ind.  110.  (~q)  Wilson   v.   Kay,    24    Ind.   156; 

(m)  Kirkpatrick  v.  Stringley,  2  Ind.  Switzer  v.  Miller,  58  Ind.  561 ;  Picker- 

269 ;  Hayes  v.  Haye?,  64  Ind.  243.  ell  r.  Frankem,  64  Ind.  25. 

(n)  Paine  v.  The  State,  7  Blkf.  206;  (r)  Post,  §  680;  Norris  v.  Amos,  15 

Stringley  «.  Kirkpatrick.  7  Blkf.  359;  Ind.  365;  Polley  v.  Wood,  30  Ind.  407. 
Koberts  v.  Norris,  67  Ind.  386. 


394  ANSWER.  [CHAP. 

pleaded  had  no  notice  of  the  pendency  of  the  action,  the  judgment 
will  be  no  bar.8  But  it  is  not  necessary  that  the  answer  should  show 
that  notice  was  given,  as  it  will  be  presumed.1 

The  want  of  notice  may  be  set  up  by  way  of  reply,  but  it  is  not 
necessary.  The  proof  of  notice  must  be  made  by  the  defendant  on  the 
trial,  or  may  be  disproved  by  the  plaintiff"  without  a  special  reply. 
That  there  was  error  in  the  former  proceeding  does  not  affect  the  right 
of  the  defendant  to  plead  the  judgment,  so  long  as  it  is  unreversed." 
It  is  otherwise  if  the  judgment  is  void.v 

The  dismissal  of  a  former  action  can  not  be  pleaded  as  an  adjudica- 
tion." 

What  was  in  issue  in  the  former  action  must  be  determined  from 
the  pleadings.1 

In  an  action  for  the  breach  of  a  continuing  covenant,  a  judgment 
for  a  former  breach  of  the  same  covenant  can  not  bar  the  action.  The 
second  breach  is  treated  as  a  new  and  independent  cause  of  act  ion. y 

The  allowance  of  a  claim  by  an  executor  or  administrator  is  not  a 
final  judgment  upon  which  an  answer  of  former  adjudication  can  be 
sustained.2 

An  order  of  the  supreme  court  upon  proper  notice,  reinstating  an 
appeal  that  has  been  dismissed,  is  an  adjudication.8 

And  the  allowance  of  a  claim  by  a  board  of  county  commissioners.15 

But  it  is  held  otherwise  where  the  claimant  is  allowed  to  appeal  or 
bring  an  action  against  the  county  at  his  option.0 

The  recovery  against  a  guardian  and  his  sureties,  on  his  bond,  by 

(s)  Woodhull   v.  Freeman,  21    Ind.  mikel  P.  Cox,  58  Ind.  133;  Walker  v. 

229;  Packard  v.  Mendenhall,  42  Ind.  Heller,  73  Ind.  46. 
598.  (x)  Sharkey    v.   Evans,   Adm'r,   46 

(t)  Abdil  v.  Abdil,  33  Ind.  460;  The  Ind.  472. 
State  v.  Ennis,  74  Ind.  17.  (y)  Block  v,  Ebner,  54  Ind.  544. 

(u)  Houseman  v.  Moulton,  15  Ind.  (z)  Fiscus  v.  Kobbins,  60  Ind.  100. 
367;  Abdil  v.  Abdil,  33  Ind.  460;  Dav-  (a)  Blair  v.  Lanning,  61  Ind.  499. 
enport  v.  Barnett,  51  Ind.  329;  Britton  (b)  The  Board  of  Comm'rs  of  Han- 

v.  The  State,  54  Ind.  535  ;  Pressler  v.  cock  County  v.  Binford,  70  Ind.  208; 

Turner,  57  Ind.  56;  Parker  v.  Wright,  The    Board   of    Comm'rs   of  Jackson 

62  Ind.  398;  The  State  v.  Benson,  70  County  v.  Applewhite,    62   Ind.  464; 

Ind.  481.  The   State    v.    Benson,    70   Ind.   481  ; 

(v)  Packard  v.  Mendenhall,  42  Ind.  Campbell  w.  The  Board  of  Comm'rs  of 

598;     Davis    v.   Green,    57*  Ind.   493;  Monroe  County,  71  Ind.  185. 
Joyce  v.  Whitney,  57  Ind.  550.  (c)   K.  S.  1881,  §  5771 ;  Jameson  v. 

(w)   Miller  v.  Mans,   28   Ind.   194;  The   Board  of  Comm'rs   of  Bartholo- 

Whitworth  v.  Sour,  57  Ind.  107;  Car-  mew  County,  64  Ind.  524,  534. 


XV.]  ANSWER.  395 

one  of  his  wards,  can  not  be  pleaded  against  an  action  by  another  of 
the  wards  on  the  same  bond.d 

606.  Estoppel  in  pais. — Matter  of  estoppel  must  be  specially 
pleaded.6     The  answer  must  set  out  the  acts  or  representations  of  the 
plaintiff  constituting  the  estoppel,  and  allege  that  the  plaintiff,  at  the 
time,  had  knowledge  of  the  facts  out  of  which  his  rights  sprung ;  that 
the  defendant  acted  in  good  faith,  and  was  ignorant  of  the  facts ;  that 
he  acted  upon  the  acts  or  representations  of  the  plaintiff,  and  parted 
with  some  right  or  invested  something  on  account  of  such  acts  or  rep- 
resentations, believing  them  to  be  true ;    and  the  facts  stated  must 
show  that  the  defendant  was  in  such  a  position  that  he  had  a  right  to 
rely  upon  the  acts  or  representations/ 

The  law  is  thus  stated  in  Fletcher  v.  Holmes  :  "  The  doctrine  of  es- 
toppel in  pais  rests  upon  a  reasonable  and  just  foundation.  For  the 
prevention  of  fraud,  the  law  will  hold  a  party  to  be  concluded  by  his 
own  act  or  admission.  Surely,  this  can  have  no  application  where 
every  thing  was  equally  known  to  both  parties,  or  where,  the  party 
sought  to  be  estopped  was  ignorant  of*  the  facts  out  of  which  his  rights 
sprung,  or  where  the  party  seeking  to  conclude  him  was  in  no  degree 
influenced  by  the  acts  or  admissions  which  are  set  up.  Estoppels 
in  pais  never  exist  without  reference  to  the  moral  qualities  of  the  con- 
duct alleged.  The  door  is  shut  against  asserting  a  right,  when  that 
would  result  in  doing  an  injury,  by  the  party  asserting  it  to  some  other 
person,  or  when  in  'good  conscience  and  honest  dealing  he  ought  not 
to  be  permitted  to  gainsay  his  previous  conduct. '"(1) 

607.  Estoppel   against   married  women. — It  is  not  within 
the  scope  of  this  chapter  to  go  into  the  question  of  estoppel  generally, 
or  attempt  to  show  by  authority  what  will  constitute  an  estoppel.    The 
decided  cases  on  this  question  are  very  numerous,  but  a  consideration 
of  them  here  would  be  out  of  place.     There  are  some  questions,  how- 
ever, that  should  be  specially  noticed.     One  of  these  is  as  to  the  effect 
of  matter  of  estoppel  against  married  women. 

It  was  held  in  some  of  the  earlier  cases  in  this  state  that  a  married 
woman  might  be  estopped  in  the  same  manner  and  to  the  same  extent 

(d)  Cotton,  Ex'r,   r.  The   State,   64  v.  Vickers,  35  Ind.  27;  The  Junction 
Ind.  573.  R.  R.  Co.  v.  Harpold,  19  Ind.  347;  Ray 

(e)  Wood  v.  Ostram,  29  Ind.  177.  v.  McMurtry,  20  Ind.  307;  Windle  v. 

(f)  Larsh  v.  Rendell,  72  Ind.  475;  Canaday,  21  Ind.  248;   llusselman  v. 
Fletcher  v.  Holmes,  25  Ind.  458,  469;  McElhenny,   23    Ind.   4,    McCabo    r. 
"Woodward   v.  Wilcox,   27   Ind.   207;  Raney,  32  Ind.  309;  Long  v.  Anderson, 
The  State  v.  Pepper,  31  Ind.  76;  Cox  62  Ind.  537. 

(1)  Form  of  answer,  Vol.  3,  p.  363. 


396  ANSWER.  [CHAP. 

as  any  other  person.     This  rule  was  carried  to  the  extent  of  estopping 
her  to  set  up  title  to  real  estate. g 

The  effect  of  these  decisions  was  that  a  married  woman,  who  was  in- 
capacitated by  an  express  provision  of  the  statute  to  convey  her  real  es- 
tate, or  incumber  the  same  except  by  deed,  in  which  her  husband 
should  join,  might  do  the  very  act  forbidden  by  statute,  by  some  act 
of  estoppel  w pais.  The  absurdity  of  such  a  doctrine  became  so  ap- 
parent that  these  cases  were  finally  overruled,  and  the  rule  established 
that  a  married  woman  could  not  do  indirectly  by  estoppel  what  she 
was  expressly  forbidden  to  do  directly  by  her  own  conveyance.11 

These  cases,  it  must  be  remembered,  apply  only  to  cases  where  the 
attempt  is  made  to  prevent  a  married  woman  from  asserting  title  to 
real  estate.  By  a  late  statute  the  disabilities  of  married  women  are 
expressly  removed,  except  as  provided  in  the  act.' 

The  limitation  of  the  right  of  a  married  woman  to  convey  or  in- 
cumber her  real  estate,  is  continued  in  force  by  this  statute,  but  it  is 
provided  that  she  shall  be  bound  by  an  estoppel  in  pais  like  any  other 
person.J 

It  is  difficult  to  see  upon  what  ground  any  such  provision  should 
have  found  its  way  into  the  statute.  It  is  certainly  not  based  upon 
sound  reason  or  justice.  The  provision  that  the  wife  shall  not  convey 
or  mortgage  her  real  estate,  except  where  the  husband  shall  join  in  the 
conveyance,  is  for  her  protection  ;  but,  under  this  statute,  she  may,  by 
an  unwary  admission,  representation,  or  act,  deprive  herself  of  her 
title. 

In  the  case  of  Behler  v.  Weyburn,  the  supreme  court  quotes,  with 
approval,  the  following  language  from  Lowell  v.  Daniels,  2  Gray,  161 : 
"  This  raises  the  material  question  at  issue  between  the  parties  whether 
a  married  woman  and  her  heirs  may  be  barred  of  her  estate  by  an  es- 
toppel in  pais.  She  can  make  no  valid  contract  in  relation  to  her  es- 
tate. Her  separate  deed  of  it  is  absolutely  void ;  any  covenants  in 
such  separate  deed  would  be  likewise  void.  If  she  were  to  covenant 
that  she  was  sole,  was  seized  in  her  own  right,  and  had  full  power  to 
convey,  such  covenants  would  avail  the  grantee  nothing.  She  could 
neither  be  sued  upon  them  nor  estopped  by  them.  The  law  has  ren- 
dered her  incapable  of  such  a  contract,  and  she  finds  in  her  incapacity  her 

(g)  Gatling  v.  Rodman,  6  Ind.  239;  (h)   Behler  v.  Weyburn,  59  Ind.  143; 

McCaffrey   v.  Corrigan,  49    Ind.  175;  Unfried    v.  Heberer,  63  Ind.  67;    Su- 

Scrantim  v.  Stewart,  52  Ind.  68;   Burk  man  v.  Springate,  67  Ind.  115. 

v.  Hill,  55  Ind.  419;  King  v.  Rhea,  56  (i)   R.  S.  1881,  §  5115. 

Ind.  1;    Miles  v.  Lingerman,  24  Ind.  (j)  R.  S.  1881,  §  5117. 
385. 


XV.]  ANSWER.  397 

protection ;  her  safety  in  her  weakness.  And  we  think  a  married  wo- 
man can  not  do  indirectly  what  she  can  not  do  directly ,  can  not  do  by 
acts  in  pais  what  sjie  can  not  do  by  deed  ;  can  not  do  wrongfully  what 
she  can  not  do  rightfully.  She  can  not  by  her  own  act  enlarge  her 
legal  capacity  to  convey  an  estate. 

"This  doctrine  of  essoppel  in  pais  would  seem  to  be  stated  broadly 
enough  when  it  is  said  that  such  estoppel  is  as  effectual  as  the  deed  of 
the  party.  To  say  that  one  may  by  acts  in  the  country,  by  admission, 
by  concealment,  or  by  silence,  in  effect  do  what  could  not  be  done  by 
deed,  would  be  practically  to  dispense  with  all  the  limitations  the  law 
has  imposed  upon  the  capacity  of  infants  or  married  women  to  alienate 
their  estates.  "k 

The  wisdom  of  breaking  in  upon  these  well-established  rules  by  stat- 
utory provisions  may  well  be  doubted,  especially  where  the  statute  has  so 
little  of  reason  or  justice  to  support  it.  But,  however  we  may  feel  in- 
clined to  question  its  wisdom,  this  statute  subjects  the  married  woman 
to  the  same  rules  as  to  estoppel  in  pais,  as  if  she  were  sole,  and  the  late 
decisions  on  the  point  are  no  longer  the  law. 

608.  Release  of  surety;  failure  to  sue  principal. — The  surety 
may  be  released  from  liability  in  various  ways  by  the  acts  or  negligence 
of  the  creditor.  This  can  not  be  the  result  of  a  mere  failure  to  sue 
when  the  debt  matures.  If  the  surety  desires  that  the  creditor  shall 
sue  he  must  give  him  written  notice  "  forthwith  to  institute  an  action 
upon  the  contract."1 

When  such  notice  is  given,  the  creditor  must  bring  his  action  within 
a  reasonable  time,  or  the  surety  will  be  released  from  liability.™ 

This  mode  of  relieving  the  surety  from  further  liability  is  purely 
statutory,  and  the  statute  must  be  substantially  complied  with  in  giv- 
ing the  notice." 

The  rule  is,  that  when  this  notice  is  given  the  creditor  must  sue 
within  a  reasonable  time.  What  is  a  reasonable  time,  must  depend,  to  a 
certain  extent,  upon  the  circumstances  of  each  case.  But  where  the 
amount  of  the  debt  is  such  that  the  suit  may  be  brought  before  a 

(k)  Behler  v.  Weyburn,  59  Ind.  143,  Ind.  363;  Root  v.  Dill,  38  Ind.  169; 

145;  Lowell  v.  Daniel,  2  Gray,  161.  Whittlesey  v.  Heberer,  48  Ind.  260. 

(1)  R.  S.  1881,  §  1210.  (n)   Franklin   v.  Franklin,    71    Ind. 

(m)  Reid  v.  Cox,  5  Blkf.  312;  Over-  573;  Halstead  v.  Brown,  17  Ind.  202; 
turf  v.  Martin,  2  Ind.  507;  Craft,  Ex'r,  Driskill  v.  The  Board  of  Comm'rs  of 
v.  Dodd,  15  Ind.  380;  Halstead  ».  Washington  County,  53  Ind.  532; 
Brown,  17  Ind.  202;  Kaufn\an  v.  Wil-  Chrisman  v.  Tuttle,  59  Ind.  loo;  Mil- 
son,  29  Ind.  504;  Sims  v.  Parks,  32  ler  v.  Arnold,  05  Ind.  488;  Colerick  v. 

McCleas,  9  Ind.  245. 


398  ANSWER.  [CHAP. 

justice  of  the  peace,  and  there  is  one  before  whom  the  action  can  be 
instituted,  the  suit  should  be  brought  at  once. 

If  the  action  must  be  brought  in  the  circuit  court  it  should  be 
brought  at  the  next  term  of  the  court. 

The  requirement  that  the  creditor  must  sue,  upon  the  proper  notice 
being  given,  is  subject  to  exception.  If  the  principal  is  a  non-resident 
of  the  state,  at  the  time  the  notice  is  given,  and  continues  to  reside  out 
of  the  state,  the  creditor  is  not  bound  to  bring  the  action.0 

The  notice  must  be  served  personally  by  reading  and  delivering  a 
copy  to  the  creditor  or  obligee  in  person,  or  to  some  person  of  proper 
age,  at  his  usual  place  of  residence. p 

Where  the  principal  is  shown  to  be  dead,  the  answer  must  allege 
that  he  left  an  estate  in  the  county  out  of  which  the  debt  might  be 
made  by  administration  thereon.  q(l) 

609.  By  extending  time  to  principal. — It  is  a  good  defense 
that  the  creditor  has  extended  the  time  of  payment  to  the  principal 
without  the  knowledge  or  consent  of  the  surety.  The  answer  must 
show  : 

1.  That  the  time  was  extended  by  agreement  with  the  principal  for 
a  valuable  consideration/ 

2.  That  the  extension  was  for  a  definite  time.8 

3.  That  it  was  without  the  knowledge  and  consent  of  the  surety.' 

4.  That  the  creditor  had  knowledge  that  the  relation  of  principal 
and  surety  existed  between  the  parties." 

These  rules  are  well  established  by  authority.  The  most  difficult 
question  has  been  to  determine  what  will  amount  to  a  sufficient  con- 
sideration for  the  new  promise  to  extend  the  time.  The  reason  upon 
which  the  rule  is  founded  is,  that  by  the  extension  of  the  time  of  pay- 
ment, the  creditor  puts  it  out  of  his  power  to  sue  the  principal. 

(o)  Kowe  v.  Buchtel,  13   Ind.  381;  &  Watts,  437;  Steele  v.  Boyd,  29  Am. 

Whittlesey  v.  Heberer,  48   Ind.  260;  Deo.  218,  225,  and  note;  s.  c.,  6  Leigh, 

Conklin  v.  Conklin,  54  Ind.  289.  547. 

(p)  McCoy   v.   Lockwood,    71    Ind.  (s)  Tracy  v.  Quillen,    65   Ind.  249; 

319,  329.  Jarvis  v.  Hyatt,  43  Ind.  163;  Menifee 

(q)  Franklin   v.  Franklin,    71    Ind.  v.    Clark,    35    Ind.    304;    Prather    v. 

573;   Whittlesey  v.  Heberer,  48   Ind.  Young,  67  Ind.  480;  Chrisman  v.  Per- 

260;  Kowe  v.  Buchtel,  13  Ind.  381.  rin,  67  Ind.  586;  Starret  v.  Burkhalter, 

(r)  Menifee   v.  Clark,  35  Ind.  304;  70  Ind.  285. 

Buck  v.  Smiley,  64  Ind.  431 ;  Dare  v.  (t)  Jarvis   r.   Hyatt,   43   Ind.   163; 

Hall,  70  Ind.  545;  Abel  v.  Alexander,  Prather  v.  Young,  67  Ind.  480. 

45  Ind.  523;  Hogshead  v.  Williams.  55  (u)   McClosky  v.  -The  Indianapolis 

Ind.  145;  United  States  v.  Simpson,  24  Mfg's,  67  Ind.  86;   Davenport  v.  King, 

Am.  Dec.  331,  and  note;  s.  c.,  3  Pen.  63  Ind.  64;  Amis  v.  Beitman,  73  Ind.  85. 

(1)  Form  of  answer,  Vol.  3,  p.  392. 


XV.]  ANSWER.  399 

If  there  is  not  such  a  consideration  as  will  bind  the  creditor  not  to 
sue  the  principal,  the  surety  is  not  released.  It  was  held  in  an  early  case, 
that  the  agreement  to  pay  interest  at  the  same  rate  provided  for  in  the 
original  contract  would  be  a  sufficient  consideration/  But  this  case  has 
been  overruled. w 

There  must  be  some  new  consideration  to  uphold  the  new  contract. 
If  the  interest  is  paid  in  advance,  or  a  greater  rate  is  paid,  or  any  in- 
dependent consideration  is  promised  or  paid,  and  the  promise  to  extend 
the  time  is  based  upon  this  consideration,  the  surety  will  be  released. * 

As  to  the  question  of  notice  to  the  holder  that  the  relation  of  prin- 
cipal and  surety  exists  between  the  makers,  if  the  note  itself  shows, 
upon  its  face,  that  one  of  the  parties  executed  the  same  as  surety  for 
the  other,  this  is  sufficient.  The  notice  appears  on  the  face  of  the  in- 
strument. 

But  where  the  parties  appear  to  be  bound  as  principals,  actual  notice 
must  be  shown.  (1) 

610.  By  alteration  of  the  contract. — The  alteration  of  the  con- 
tract, whether  by  agreement  of  the  creditor  and  principal,  or  with  the 
knowledge  of  the  payee  without  agreement,  will  discharge  the  surety 
if  made  without  his  knowledge  or  consent.* 

It  is  not  necessary  that  the  answer  should  show  that  the  contract 
has  been  changed,  to  the  injury  of  the  surety.  It  is  enough  if  it  is 
not  the  same  contract." 

But  it  must  appear  that  the  alteration  was  made  by  a  party  to  the 
instrument.  An  alteration  made  by  a  stranger,  although  material, 
can  not  release  the  surety.* 

(v)  Pierce  v.  Goldsberry,  31  Ind.  52.  Bank,  61  Ind.  349;  Judah  v.  Zimmer- 

(w)  Abel  v.  Alexander,  45  Ind.  523;  man,  22  Ind.  388;  Miller  v.  Stewart,  9 

Cbrisman  v.  Tuttle,  59  Ind.  155.  Wheat.  680;    Woodward  v.   Bank  of 

(x)  Jarvb  v.   Hyatt,   43   Ind.  163;  America,  10  Am.  Dec.,  239,  267,  and 

Woodburn  v.  Carter,  50  Ind  376.  cases  cited  in  the  note;  s.  c.,  19  Johns. 

(y)  Zimmerman    v.  Judah,  13  Ind.  391  ;    Greenfield   Bank   v.  Stowell,  25 

286;   Judah   v.  Zimmerman,   22    Ind.  Am.   Kep.   67;    s.  c.,  123    Mass.   196; 

388;    Hart   v.   Clouser,   30   Ind.   210;  Bank  of  Limestone  v.  Penick,  15  Am. 

The  State  v.  Blair,  32  Ind.  313;  The  Dec.  136,  140,  and   note;    s.  c.,  T.  B. 

Richmond  MPg  Co.  v.  Davis,  7  Blkf.  Monroe,  98;  Bowers  v.  Briggs,  20  Ind. 

412;    The  State  v.  Polke,  7   Blkf.  27;  139;"  Chappel  v  Spencer,  23  Barb.  586. 

Emmons  v.  Meeker,  55  Ind.  321  ;  Lud-  (a)  Woodward  v.  Bank  of  America, 

low  v.  Simond,  2  Am.  Dec.  291,  315,  10  Am.  Dec.  239,  269,  and  authorities 

and  note;  s.  c.,  2  Caine's  Cases,  1.  cited;    Collins   v.  Makepeace,  13  Ind. 

(z)  Crandall  v.  The  First  National  448. 

(1)  Form  of  answer,  Vol.  3,  p.  391. 


400  ANSWER.  [CHAP. 

The  fact  that  the  name  of  one  of  the  sureties  is  forged  will  not  re- 
lease the  other,  although  he  may  have  become  such  surety  believing 
the  signature  to  be  genuine. b 

Where  the  alteration  is  of  a  written  instrument,  the  foundation  of 
the  action,  the  answer  must  be  verified. 

It  is  not  necessary,  in  that  case,  to  set  out  the  facts  showing  what 
the  alterations  are.  It  is  enough  to  deny  the  execution  of  the  instru- 
ment as  sued  on.(l) 

611.  By  surrender  of  lien  on  property  of  principal  or  other 
security  held  by  creditor. — Where,  in  addition  to  the  personal  se- 
curity, the  creditor  has  a  lien  upon  property  of  the  principal,  or  holds 
property  of  his  as  security  for  the  same  debt,  he  must  use  the  proper 
diligence  to  make  such  additional  security  available,  and  a  release  or 
surrender  of  such  security  may  be  specially  pleaded  by  the  surety  in 
bar  of  the  action  against  him  if  the  property  was  sufficient  to  pay  the 
entire  indebtedness,  if  not  it  may  be  pleaded  as  a  partial  defense  to 
the  extent  of  the  value  of  the  property  or  security.0  And  this  is  true, 
by  a  much  stronger  reason,  where  the  security  that  the  surety  has  the 
equitable  right  to  have  applied  to  the  payment  of  the  debt  has  been 
lost  by  the  fraud  or  willful  negligence  of  the  payee. d  But  it  is  not 
enough  to  show  that  the  security  has  been  lost  by  the  mere  passive 
negligence  of  the  creditor.6 

The  general  rule  is  that  a  mere  failure  to  sue  the  principal,  or  to  en- 
force collection  by  suit,  where  the  payee  holds  property  security,  will 
not  discharge  the  surety,  though  there  are  authorities  the  other  way. 
In  this  state  it  is  well  settled  that  a  failure  to  sue  the  principal  until 
he  becomes  insolvent  will  afford  the  surety  no  defense.  Our  statute 
furnishes  a  remedy.  He  may  compel  the  payee  to  sue  by  giving  the 
written  notice  required  by  the  statute.  When  this  is  done  the  creditor 
must  sue.  Otherwise  his  mere  failure  to  sue  is  no  defense.  The  same 
rule  applies  to  the  securities  he  may  hold,  as  the  surety  may  compel 

(b)  Helms  v.  The  "Wayne  Agricul-         (d)  Hubbard   v.   Harrison,   38    Ind. 
tural   Co.,  73    Ind.  325;    The   Wayne     32'-J ;    Frank   v.   Braskett,  44  Ind.  92; 
Agricultural  Co.  v.  Cardwell,  73  Ind.     Robison  v.  Roberts,  20  Ind.  155. 

555.  (e)  Philbrooks  v.  McEwen,  29  Ind. 

(c)  Stewart  v.  Davis,    18    Ind.  .74;  347;  People  r.  Jansen,  5  Am.  Dec.  27">, 
Alsop  v.  Hutrhings,  25  Ind.  347;  Phil-  279,    and    authorities   cited    in    note; 
brooks  v.  McEwen,  29  Ind.  347;   Hoi-  Var.ee  v.  English,  78  Ind.  80. 

land  v.  Johnson,  51  Ind.  34(5;  McCoy        (1)  Form  of  answer,  Vol.  3,  p.  348. 
«.  Wilson,  58  Ind.  447;  Dixon  v.  Ew- 
ing,  17  Am.  Dec.  590;  s.  c.,  3  Ohio,  280. 


XV.]  ANSWER.  401 

him  to  sue  by  giving  the  proper  notice,  and  in  the  action  have  the  se- 
curities applied  to  the  satisfaction  of  the  debt. 

If  he  fails  to  give  the  necessary  notice  the  creditor  may  remain  pas- 
sive, although  the  securities,  by  reason  of  the  delay,  become  worthless. 
The  surety  can  not  found  an  equity  upon  the  negligence  of  the  cred- 
itor, when  he  himself  has  been  guilty  of  negligence  in  not  giving  the 
proper  notice  to  sue.  The  rule  is  different  where  the  benefit  of  the  se- 
curity is  lost  by  the  affirmative  act  of  the  creditor. 

612.  Release  of  indorser — by  failure  to  sue  maker. — The 
liability  of  the  indorser  differs  materially  from  that  of  the  surety  in 
respect  to  the  duty  of  the  payee  to  sue  the  maker.  His  contract  is  to 
pay  the  debt  upon  failure  to  collect  it  from  the  maker,  due  diligence 
being  used  by  the  payee.  There  is  a  material  difference  in  this  respect 
between  notes  negotiable  by  the  law  merchant  and  those  negotiable  by 
statute.  In  the  case  of  promissory  notes  negotiable  by  statute  notice 
to  the  indorser  Is  not  necessary  to  fix  his  liability,  but  the  payee  must 
use  due  diligence  to  collect  from  the  maker  before  he  can  sue  the  in- 
dorser, and  a  failure  to  do  so  will  ordinarily  discharge  the  assignor. 
But  it  is  not  necessary  that  such  a  defense  should  be  specially  pleaded. 
If  the  indorsee  sues  the  indorser  he  must,  in  his  complaint,  show  that 
he  has  used  due  diligence  to  collect  from  the  maker,  or  show  a  sufficient 
excuse  for  not  having  done  so.  It  is  not  sufficient  to  allege  generally 
that  due  diligence  has  been  used.  The  facts  showing  what  has  been 
done,  or  the  excuse  for  not  having  sued  the  maker,  must  be  alleged/ 

If  the  complaint  fails  to  show  the  necessary  facts  to  authorize  the  in- 
dorsee to  sue  the  indorser,  the  defect  may  be  reached  by  demurrer.  If 
the  facts  are  sufficiently  stated,  a  general  denial  will  present  the  issue. 
What  will  amount  to  due  diligence  or  a  sufficient  excuse,  will  be  con- 
sidered in  another  place. 

The  right  of  the  indorsee  to  sue  the  indorser  on  a  note  payable  in 
a  bank  in  this  state,  does  not  as  in  case  of  a  note  negotiable  by  the  stat- 
ute depend  upon  whether  he  has  used  due  diligence  to  collect  from  the 
maker  or  not. 

The  contract  of  such  an  indorser  is  that  he  will  pay  the  same  "  on 
failure  of  the  maker  to  do  so,  on  the  proper  presentment  and  demand, 
if  he,  the  indorser,  is  duly  notified  of  such  failure  of  the  maker."8 

(f)  Reynolds  v.  Jones,  19  Ind.  123;  National  Bank,  64  Ind.  92;  Somerby 

Herald  v.  Scott,  2  Ind.  55;  Hanna  v.  v.  Brown,  73  Ind.  353;  Vol.  3,  p.  60-62. 

Pegg,    1    Blkf.   181;    Roberts  v.   Mas-  (g  Story  Prom.  Notes,  §§  135,  230; 

ters,  40  Ind.  461 ;  Couch  v.  The  First  Blacklege  v.  Benedick,  12  Ind.  389. 
26 


ANSWER.  [CHAP. 

It  is  necessary,  therefore,  that  the  plaintiff  should  show  that  the 
note  has  been  presented  for  payment  at  the  proper  time  and  place ;  that 
it  was  not  paid  by  the  maker,  and  that  reasonable  notice  was  given  to 
the  indorser,  or  a  sufficient  excuse  for  the  want  of  presentment  and  no- 
tice. These  facts  must  be  set  out  in  the  complaint.11 

Therefore,  no  special  answer  is  necessary.  The  whole  question  arises 
under  the  issue  formed  by  the  general  denial. 

The  same  rule  applies  to  bills  of  exchange. 

613.  Tender. — A  doubt  was  expressed  in  an  early  case  whether  a 
tender  could  be  proved  under  the  general  denial.1 

An  answer  of  tender  undoubtedly  sets  up  new  matter,  and  should 
be  specially  pleaded.  The  question  of  tender  may  arise  in  different 
ways.  It  is  only  considered  here  as  it  may  arise  in  defense  of  a  cause 
of  action,  and  not  as  the  foundation  upon  which  to  bring  suit. 

The  answer  of  a  tender  of  payment  is  rarely  resorted  to  in  practice. 
The  statutory  provision  that  authorizes  the  defendant  to  avoid  the 
cost  of  the  action  by  offering  to  confess  judgment  is  more  conven- 
ient.J 

Where  a  tender  is  pleaded  in  discharge  of  a  contract,  it  must  be 
so  complete  and  perfect  as  to  vest  the  absolute  property  in  the  per- 
son to  whom  it  is  tendered. b 

The  tender  must  be  of  "such  an  article  in  every  material  respect 
as  the  contract  under  which  it  is  made  requires."1 

But  where  the  contract  is  to  deliver  unidentified  property  of  a  speci- 
fied kind,  it  is  sufficient  to  allege  a  tender  of  a  sufficient  amount  of  the 
kind  and  quality  named. m 

To  be  sufficient,  the  answer  must  show — 

1.  A  tender  of  the  full  amount,  whether  the  contract  calls  for  prop- 
erty or  money  or  both."  But  the  tender  of  too  much  does  not  render 
it  insufficient.0 

And  where  the  contract  requires  that  a  note  shall  be  given  with  in- 
terest from  date,  it  is  not  sufficient  to  tender  the  amount  for  which 
the  note  should  be  given.  The  note  must  be  tendered  or  the  amount 
of  the  note  with  interest  to  its  maturity.1" 

(h)  Griffin   v.  Kemp,  46   Ind.  172;  (m)  Newby  v.  Rogers,  54  Ind.  193; 

Green  v.  Louthain,  49  Ind.*  139;  Pol-  Polk  v.  Frash,  61  Ind.  206. 

lard  v.  Bowen,  57  Ind.  232;  Patterson  (n)  Streeter  v.  Henley,  1  Ind'.  401; 

r.  Carrell,  60  Ind.  128.  Henley  v.  Streeter,  5  Ind.  207;  Hamar 

(i)  Schrader  v.  Wolflin,  21  Ind.  238.  v.  Dimmick,  14  Ind.  105. 

( j)  R.  S.  1881,  §§  514,  515.  (o)  Patterson  v.  Cox,  25  Ind.  261. 

(k)  Schrader  v.  Wolflin,  21  Ind.  238.  (p)  Wainscott  r.  Smith,  68  Ind.  312. 

(1)  Sharp  u.  Jones,  18  Ind.  314. 


XV.]  ANSWER.  403 

2.  That  it  was  made,  when  in  money,  in  money  that  was  at  the  time 
legal.  tender.q 

3.  That  it  was  made  without  condition  prejudical  to  the  plain  tiff. r 
Where  the  tender  is  of  the  amount  due  upon  commercial  paper,  it 

may  be  upon  condition  that  the  paper  is  delivered  up,  but  not  where 
the  paper  is  negotiable  by  statute,  nor  can  a  tender  be  made  upon  con- 
dition that  a  mortgage  securing  the  amount  is  canceled.8 

Where  the  tender  is  made  upon  condition,  and  is  accepted  by  the  op- 
posite party,  with  knowledge  of  the  condition,  he  will  be  bound  by  his 
acceptance,  although  if  refused  the  tender  would  not  be  good.4 

4.  Where   the  tender  is  of  money,   that  the  amount  tendered  is 
brought  into  court  for  the  use  of  the  plaintiff. u 

The  rule  that  the  money  must  be  brought  into  court  does  not  apply 
to  actions  for  specific  performance. 

In  such  cases  it  is  sufficient  to  allege  a  readiness  to  pay  the  amount 
when  the  same  is  ascertained  by  the  decree/  and  it  is  held  that  this 
rule  only  applies  where  the  answer  confesses  some  or  all  of  the  allega- 
tions of  the  complaint,  and  pleads  the  tender  as  a  defense. w 

5.  That   the  tender  was  made  to  the  person  authorized   to  accept 
payment.1 

6.  Where  the  contract  fixes  the  time  in  which  property  is  to  be  de- 
livered that  the  tender  was  made  within  the  time  named.7  ' 

A  tender  before  the  proper  time  is  no  better  than  one  made  too 
late.z(l) 

614.  Effect  of  tender. — A  tender  and  refusal  of  the  property  at 
the  time  and  place  fixed  by  the  contract  for  its  delivery,  vests  the 
property  in  the  creditor,  and  puts  an  end  to  his  right  to  sue  upon  the 
contract.  In  this  class  of  cases  it  is  not  necessary  to  allege  a  subse- 

(q)  The   Bank  of  the  State  of  In-  (v)  Fall  v.  Hazelrig,  45  Ind.  676; 

diana    v.    Lockwood,    16     Ind.    306;  Lynch  v.  Jennings,  43  Ind.  276;  Ruckle 

Thayer  v.  Hedges,  23  Tnd.  141 ;  Brown  v.  Barbour,  48  Ind.  274. 

v.  "Welch,  26  Ind.  116;  Bowen  v.  Clark,  (w)  Sowle  v.  Holdridge,  25  Ind.  119. 

46  Ind.  405.  (x)  King  v.  Finch,  60  Ind.  420. 

(r)  Bickle    v.  Beseke,    23   Ind.    18;  (y)  Newbyr.  Rogers,  40  Ind.  9;  Ad- 

Ferguson    r.    Wagner,    41    Ind.   450;  ams  v.  Dale,  29  Ind.  273;    Smith  ». 

Rose  v.  Duncan,  49  Ind.  269;  Storey  v.  Smith,  8  Blkf.  208;  Cook  v.  Gray,  6 

Crewson,  55  Ind.  397.  Ind.  335;   Ross  v.  Swiggett,   16  Ind. 

(s)  Story  v.  Crewson,  55  Ind.  397.  433;  Larimore  v.  Hornbaker,  21   Ind. 

(t)  Bickle  v.  Beseke,  23  Ind.  18.  430. 

(u)  Anson    v.    Byrd,   6    Ind.  475;  (z)  Reed  v.  Rudman,  6  Ind.  409. 

Moon  v.  Martin,  55  Ind.  218.  (1)  Form  of  answer,  Vol.  3,  p.  398. 


404  ANSWER.  [CHAP. 

quent  readiness  to  comply  with  the  contract,  or  that  the  defendant 
brings  the  property  into  court.8 

Where  a  tender  is  made  of  money  as  payment  of  a  debt,  it  amounts 
to  an  admission  on  the  part  of  the  defendant  that  he  owes  the  plaintiff 
that  amount,  and  where  the  money  is  brought  into  court  it  becomes  at 
once  the  property  of  the  plaintiff;  and  although  he  may  recover  a 
judgment  for  a  smaller  sum,  he  is  still  entitled  to  the  full  amount  paid 
into  court  as  a  tender.b 

It  is  otherwise  where  the  tender  has  been  made  without  making  it 
good  by  bringing  the  money  into  court.  Although  the  tender  is  an  ad- 
mission of  that  amount  due,  it  is  not  conclusive,  and  the  defendant  is 
not  bound  to  bring  the  money  into  court,  but  may  abandon  the  tender 
and  prove  a  less  sum  to  be  due  the  plaintiff.0 

The  effect  of  a  tender  in  this  class  of  cases,  kept  good  by  paying  the 
amount  of  money  into  court,  is  that,  if  the  plaintiff  recovers  judgment 
for  a  smaller  sum  he  must  pay  the  cost.d  And  where  the  contract  bears 
interest,  the  interest  ceases  from  the  time  of  the  tender.6 

615.  Tender  after  suit  brought. — A  tender  after  suit  brought 
can  not  be  pleaded  in  bar  of  the  action,  but  may  be  to  its  further 
maintenance. f 

Such  a  tender  would,  if  sufficient  in  all  other  respects,  render  the 
plaintiff  liable  for  all  costs  made  after  the  tender. 

616.  Failure  of  plaintiff  to  tender  performance. — As  a  rule 
the  failure  of  the  plaintiff  to  tender  performance  need  not  be  specially 
pleaded  as  a  defense.     Where  a  tender  is  necessary,  on  the  part  of  the 
plaintiff,  as  a  condition  precedent  to  his  right  to  maintain  the  action, 
such  tender  must  be  alleged  in  the  complaint,  and  the  issue  will  arise 
under  the  general  denial.8 

But  cases  may  arise  where,  although  a  tender  would  be  necessary  to 
entitle  the  plaintiff  to  sue,  his  cause  of  action  may  be  such  that  it  is 
not  necessary  to  allege  a  tender  in  the  complaint.  Thus,  where  the  ac- 

(a)  Mitchell  v.  Merrill,  2  Blkf.  87 ;         (g)  Parks  v.  The  Evansville,  etc.,  R. 
Cromwell  v.  Wilkinson,  18  Ind.  365.  R.  Co.,  23  Ind.  567;  Mather  v.  Scoles, 

(b)  Reed  v.  Armstrong,  18  Ind.  446;  35  Ind.  1 ;  McCaslin  v.  The  State,  44 
Sowle  v.  Holdridge,  20  Ind.  204  ;  Sowle  Ind.  151 ;  Huff  v.  Lawler,  45  Ind.  80 ; 
v.  Holdridge,  25  Ind.  119;  Barnes  v.  Fall  v.  Hazelrig,  45  Ind.  576;   Sum- 
Bates,  28  Ind.  15.  mers  v.  Sleeth,  45  Ind.  598;  Overly  v. 

(c)  Abel  v.  Opel,  24  Ind.  250.  Tipton,  68  Ind.  410 ;  Melton  v.  Coffett, 

(d)  Prather  v.  Pritchard,  26  Ind.  65.  59  Ind.  310;  Cole  v.  Wright,  70  Ind. 

(e)  Hunter  v.  Bales,  24  Ind.  299.  179  ;  Clouse  v.  Elliott,  71  Ind.  302. 

(f )  Ireland  v.  Montgomery,  34  Ind. 
174. 


XV.]  ANSWER.  405 

tion  is  upon  a  note  which  does  not  show,  upon  its  face,  that  it  is  paya- 
ble on  condition  the  complaint  would  be  good  without  the  allega- 
tion of  a  tender.  But  if  the  note  were  given  in  consideration  that  the 
plaintiff  would  perform  some  act  that  would  amount  to  a  condition 
precedent  the  defendant  must  plead  the  condition  as  a  defense.11 

617.  Usury. — The  right  to  defend  against  any  part  of  the  interest 
claimed  to  be  due  under  the  contract,  on  the  ground  that  it  is  usurious, 
is  governed  by  statute.1 

The  question  whether  the  rate  of  interest  is  illegal  or  not  must  be 
governed  by  the  statute  in  force  when  the  contract  was  made.  If  legal 
then  it  can  not  be  rendered  illegal  by  a  subsequent  statute. 

But  it  has  been  held  that  where,  under  the  statute  in  force,  the  con- 
tract is  voidable  on  account  of  the  usurious  rate  of  interest,  it  may  be 
rendered  valid  by  a  subsequent  statute,  and  may  be  enforced. •> 

The  soundness  of  this  rule  may  well  be  doubted  when  applied  to 
contracts  voidable  under  the  law  in  force  at  the  date  of  its  execution. 
But  the  same  rule  has  been  applied  where  the  contract  was  void.k 

Where  the  rate  of  interest  is  illegal  at  the  date  of  the  contract,  al- 
though there  is  no  provision  authorizing  the  debtor  to  recoup  the 
usurious  interest  paid,  if  a  subsequent  statute  is  passed  allowing  such 
a  defense  he  may  take  advantage  of  the  statute  if  in  force  when  the 
suit  is  commenced.* 

The  present  statute  provides  that  the  legal  rate  of  interest,  in  the 
absence  of  any  provision  in  the  contract  fixing  a  higher  rate,  shall  be 
six  per  cent  per  annum,  but  the  parties  may  lawfully  contract  in 
writing  for  eight  per  cent  per  annum.1  It  further  provides  that, 
where  a  greater  rate  than  eight  per  cent  is  contracted  for,  the  con- 
tract shall  be  void  as  to  the  usurious  interest  contracted,  and  where  the 
usurious  interest  has  been  reserved  or  paid  the  debtor  may  recoup  the 
same.m 

Under  this  statute,  where  the  written  contract  sued  on  shows  upon 
its  face  a  usurious  rate,  to  the  extent  of  the  illegal  interest  it  is  void. 

(h)  Cook  v.  Bean,  17  Ind.  504;  Gor-  r.  Phillips,  Adm'r,  55  Ind.  226;  Wood 

ham  v.  Reeves,  3  Ind.  83 ;  Mix  v.  Ells-  v.    Kenedy,  19    Ind.  68;    Shockley  v. 

worth,  6  Ind,  517;    Carver  v.  Fenni-  Shockley,  20  Ind.  108. 

more,  8  Ind.  135.  (k)  Reed  v.  Coale,  4  Ind.  283  ;  An- 

(i)  Shook  v.  The  State,  6  Ind.  113.  drews  v.  Russell,  7  Blkf.  474. 

(j)  Sparks  v.  Clapper,  30  Ind.  204;  (a)  Bowen   v.   Phillips,    Adm'r,   55 

Klingensmith  v.  Reed,  31    Ind.  389 ;  Ind.  226. 

Pattison  v.  Jenkins,  33  Ind.  87;  High-  (1)  R.  S.  1881,  §  5198. 

ail  v.  McMickle,  39  Ind.  270;  Bowen  (m)  R.  S.  1881,  §  5201. 


406  ANSWER.  [CHAP. 

This  being  the  case,  no  answer  of  usury  is  necessary,  as  the  court  can 
only  allow  judgment  for  legal  interest. 

But  where  the  fact  of  illegal  interest  having  been  contracted  for 
does  not  appear  on  the  face  of  the  contract,  or  such  interest  has  been 
reserved  or  paid,  the  fact  must  be  specially  pleaded.  The  answer  must 
not  go  to  the  whole  complaint,  as  the  contract,  under  the  statute,  is 
only  void  in  part,  and  the  facts  showing  to  what  extent  it  is  void, 
and  the  amount  of  illegal  interest  already  reserved  or  paid,  must  be 
stated.0 

And  where  the  principal  of  the  contract  sued  on  is  in  part  made  up 
of  usurious  interest  under  a  former  contract  or  liability,  the  answer 
should  show  specifically  the  contract  and  the  amount  of  usurious  in- 
terest included.0 

It  was  held  in  some  of  the  earlier  cases  that  the  answer  must  show 
that  the  usurious  interest  was  corruptly  reserved,  where  the  instrument 
did  not  show  upon  its  face  that  it  was  usurious. p 

In  others  it  is  held  that  where  the  rate  of  interest  reserved  is  shown 
to  be  usurious,  the  law  will  conclusively  presume  such  interest  to  have 
been  corruptly  taken  or  contracted  for.q 

Under  later  statutes,  such  as  the  one  now  in  force,  it  is  held  that  the 
answer  need  not  allege  that  the  unlawful  interest  was  corruptly  re- 
served/ 

Where  the  contract  is  to  be  performed  in  another  state,  and  by  the 
statute  of  that  state  it  is  usurious,  such  statute  must  be  set  out  as  a  part 
of  the  answer.8 

If  no  statute  is  pleaded,  the  courts  of  this  state  must  presume  that 
the  common  law  prevails  in  the  state  where  the  contract  is  executed, 
and  that  no  rate  of  interest  would  be  illegal.1 

It  was  held  in  some  of  the  earlier  cases  that,  where  there  was  noth- 
ing to  show  whether  there  was  any  statute  of  the  state  where  the  con- 
tract was  to  be  performed,  it  would  be  construed  according  to  the  law 
of  this  state,"  but  these  cases  have  been  overruled." 

(n)  Hays   v.   Miller,   12    Ind.    187;  (q)  Reed  v.  Coale,  4  Ind.  283. 

Collins    v.    Makepeace,   13   Ind.   448;  (r)  Cole  v.  Bansemer,  26  Ind.  94. 

Webb  v.  Deilch,17  Ind.  521;   Mclntire  (s)  Smith  v.  Muncie  National  Bank, 

r.  Whitney,   17  Ind.  528;    Wilson  v.  29  Ind.  158;  Engler  v.  Ellis,  16  Ind. 

Flemming,  23  Ind.  119.  475. 

(o)  Engler  v.  Collins,  16  Ind.  189;  (t)  Buckinghouse  v.  Greeg,  19  Ind. 

Wilson  v.  Flemming,  23  Ind.  119.  401. 

(p)  Shook  v.  The  State,  6  Ind.  113;  (u)  Shaw  v.  Wood,  8  Ind.  518;  Bly- 

Cohee  v.  Cooper,  8  Blkf.  115;  Sutton  v.  stone  v.  Burgett,  10  Ind.  28. 

Fletcher,  6  Blkf.  362;  Connell  v.  Pum-  (v)  Smith  v.  Muncie  Bank,  29  Ind 

phrys,  9  Ind.  135.  158. 


XV.]  ANSWER.  407 

Where  the  contract  is  executed  in  one  state  to  be  performed  in 
another,  and  in  one  state  the  rate  of  interest  is  lawful,  and  in  the  other 
not,  it  should  be  held  to  have  been  made  by  the  parties  with  reference 
to  the  place  where  it  would  be  legal." 

Our  statute  is  made  to  apply  to  all  contracts  made  within  the  state, 
although  to  be  performed  out  of  the  state,  but  secured  by  mortgage  on 
real  estate  within  this  state.  The  statute  is  applicable  so  far  as  the 
liability  of  the  land  is  concerned. x 

Where  the  note  sued  on  is  one  governed  by  the  law  merchant,  the 
defense  of  usury  can  not  be  pleaded  against  an  innocent  indorsee  for 
value  before  maturity,  although,  where  the  maker  is  compelled  to  pay 
usurious  interest,  he  may  sue  the  original  holder  of  the  note  and  re- 
cover the  amount  of  illegal  interest  he  is  thus  forced  to  pay.y 

The  statute  only  authorizes  the  recoupment  of  illegal  interest  where 
*'  a  greater  rate  than  eight  per  cent  is  contracted  for  and  in  an  action  on  a 
contract  affected  by  such  usury."2 

Therefore,  where  there  is  no  contract  in  writing,  although  a  greater 
rate  of  interest  than  six  per  cent,  but  not  above  eight,  has  been  paid, 
it  can  not  be  recouped.* 

It  was  held  otherwise  in  one  case,b  but  this  decision  was  overruled 
in  the  case  of  Hiatt  v.  Eink. 

The  present  statute  differs  from  the  one  under  which  the  cases  cited 
were  decided.  The  statute  then  in  force  only  gave  the  right  to  recover 
the  interest  paid  in  excess  of  ten  per  cent.  The  present  act  allows  the 
recoupment  of  all  interest  paid  in  excess  of  six  per  cent,  but  the  right 
to  recoup  any  part  of  the  interest  is  only  given  where  there  is  a  con- 
tract for  a  greater  rate  than  eight  per  cent. 

Although  the  plaintiff  without  a  written  contract  can  only  recover 
six  per  cent,  if  a  greater  rate  has  been  paid  voluntarily  the  defendant 
can  not  recover  it  back  by  way  of  recoupment  or  otherwise,  as  the  stat- 
ute gives  him  no  such  right. 

Where  a  note  is  given  for  usurious  interest,  and  there  is  no  other 
consideration,  an  answer  of  want  of  consideration  would  be  sufficient 
to  raise  the  question.0 

The  penalty  against  national  banks  for  reserving  usurious  interest  is 

(w)  Story's   Conflict  of   Laws,   6th  (y)  Lacy  v.  Brown,  67  Ind.  478. 

ed.,  §  305a.;  2  Par.  on  Con  ,  5th  ed.,  p.  (z)  K.  S.  1881,  §  5201. 

58'2etseq.;  Depau  v.  Humphreys,  20  (a)   Reynolds  v.  Roudabush,    59  Ind. 

Mart.  (La.)  1 ;  Peck  v.    Mayo,  14  Vt.  483;  Hiatt  ??.  Rink,  64  Ind.  590. 

33;  Chapman   v.   Robertson,  6  Paige,  (b)   Haggerty  v.  Jtiday,  58  Ind.  154. 

627;  Butler  v.  Myer,  17  Ind.  77.  (c)  Musselman   v.  McElhenney,  23 

(x)  R.  S.  1881,  I  5204.  Ind.  4. 


408  ANSWER.  [CHAP. 

governed  by  the  act  of  Congress  on  that  subject,  and  not  by  our  stat- 
ute.'1 (1) 

618.  Who  may  plead  usury. — It  is  held  that  the  defense  of  usury 
is  personal  to  the  borrower,  his  heirs,  and  representatives,  and  that  the 
vendee  of  real  estate  incumbered  by  mortgage  tainted  with  usury  can 
not  make  the  defense.6     But  that  the  defense  may  be  made  with  the 
consent  of  the  party  who  made  the  usurious  contract/ 

The  party  whose  consent  is  required  need  not  be  a  party  to  the  suit.g 

The  maker  of  a  note  can  not  defend  against  the  same  in  the  hands 
of  an  assignee  on  the  ground  that  the  assignment  was  made  in  considera- 
tion of  usurious  interest.11 

Nor  can  the  assignor  in  an  action  against  him  by  a  bonaf.de  assignee 
defend  on  the  ground  that  the  note  was  given  for  an  illegal  consid- 
eration.1 

But,  where  the  maker  or  original  debtor  is  insolvent,  a  junior  in- 
cumbrancer  may  take  advantage  of  usury  in  the  prior  incumbrance 
without  the  consent  of  the  debtor  for  the  purpose  of  protecting  the 
fund  out  of  which  the  debts  are  to  be  satisfied. j  And  the  defense  may 
be  made  by  a  surety.k 

As  to  what  will  amount  to  usury,  see  the  authorities  cited  in  the  foot- 
note.1 

619.  Breach  of  covenant ;  deed  the  foundation  of  the  ac- 
tion.— Where  defense  is  made  in  an  action  to  recover  the  purchase- 
money  for  real  estate  on  the  ground  of  a  breach  of  covenants  contained 
in  the  deed,  the  deed  is  the  foundation  of  the  defense,  and  must  be 

(d)  Wiley  v.  Starbuck,  44  Ind.  298.          ( j)  Butler  v.  Myer,  17  Ind.  77;  Cole 

(e)  Stephens   v.  Muir,   8   Ind.  352;     v.  Bansemer,  26  Ind.  94. 

Stein   v.  Indianapolis,   etc.,  Ass'n,   18  (k)  Stockton   v.    Colenian,    39   Ind. 

Ind.  237;  Wright  v.  Bundy,  11  Ind.  106. 

398;    Price  v.  Pollock,   47   Ind.   362;  (1)  The  State  Bank  v.  Coquillard,  6 

Price  v.  Bowen,  47  Ind.  574;  Stude-  Ind.  232;  Siter  v.  Sheets,  7  Ind.  132 . 

baker  v.  Marquardt,  55  Ind.  341.  Vail  v.  Heustis,   14  Ind.  607;   Borum 

(f)  Borum  v.  Fouts,  15  Ind.  50.  v.  Fouts,  15  Ind.  50;  Keed  v.  Helm,  15 

(g)  Gordon  v.  Montgomery,  19  Ind.  Ind.  428;  Brown  -».  Maulsby,  17  Ind. 
110.  10;  Musselmen  ».  McElhenny,  23  Ind. 

(h)  Conwell  v.  Pumphrey,  9  Ind.  4;  Wilson  v.  Fleming,  23  Ind.  119; 

135;  Knights  v.  Putnam,  3  Pick.  184;  Newkirk  v.  Burson,2S  Ind.  435;  Smith 

Littell  v.  Hord,  Hardin's  R.  81;  v.  Muncie  National  Bank,  29  Ind.  158; 

Cutchen  v.  Coleman,  13  Ind.  568;  Ho-  llathburn  r.  Wheeler,  29  Ind.  601; 

sier  v.  Eliason,  14  Ind.  523;  Butler  r.  McLaugblin  v.  The  Citizens' Building, 

Myer,  17  Ind.  77.  Loan  and  Savings  Association,  62  Ind. 

(i)  Johnston  v.  Dickson,  1  Blkf.  2o6.  204. 

(1)  Forms  of  answer,  Vol.  3,  p.  400. 


XV.]  ANSWER.  409 

made  a  part  of  the  answer  for  the  purpose  of  showing  the  covenants."1 
And  the  answer  must  contain  a  statement  of  the  facts  constituting  a 
breach  of  the  covenants." 

620.  Of  title  and  for  quiet  enjoyment. — The  mere  want  of  title 
in  the  vendor  is  no  defense  in  the  absence  of  fraud,  or  such  covenants 
as  will  make  the  want  of  title  available  as  a  breach.0 

To  constitute  a  breach  of  the  covenant  of  warranty  of  title  there 
must  be  an  entire  want  of  title,  or  an  eviction  under  a  paramount 
title. P 

An  entire  want  of  title  in  the  vendor  is  not  a  good  defense  where 
the  vendee  is  in  possession  under  the  deed,  and  has  been  put  to  incon- 
venience or  expense  on  account  of  the  defect  of  title.q 

In  some  of  the  cases  it  is  held  that  an  answer  of  entire  want  of  title 
in  the  grantor  may  be  a  good  defense  against  a  personal  judgment  on 
the  notes,  but  not  against  the  foreclosure  of  the  mortgage/ 

When  the  deed  has  not  been  made,  but  the  note  sued  on  is  given  in 
consideration  of  the  conveyance  of  real  estate  at  a  time  fixed,  and  that 
time  has  passed  by,  it  is  a  good  defense  to  the  note  that  the  plaintiff 
was  not  the  owner  of  the  real  estate.8 

It  is  not  sufficient  in  an  answer  to  negative  the  covenants  in  the  deed 
in  general  terms.  The  facts  constituting  the  breach  must  be  stated. 
It  is  held  that  such  an  averment  would  be  good  in  a  complaint  for 
damages,  but  would  only  entitle  the  plaintiff  to  nominal  damages,  and 
in  an  answer  which  seeks  to  avoid  the  payment  of  the  purchase-money 
it  does  not  amount  to  a  defense  beyond  the  sum  of  one  cent.* 

The  defendant,  being  in  possession  under  the  deed,  can  not  defend 

(m)  Starkie  v.  Neese,  30  Ind.  222;  Hacker  v.  Blake,  17  Ind.  97;  Estep  v. 
Galbreath   v.  McNealy,  40  Ind.  231;  Estep,  23  Ind.  114;  Mahoney  v.  Rob- 
Church  v.  Fisher,  40  Ind.  145;  Wood-  bins,  49  Ind.  146;  Hooker  v.  Falson,  4 
ford  v.  Leavenworth,  14  Ind.  311  ;  Jen-  Ind.  90. 
kinson  v.  Ewing,  17  Ind.  505.  (r)   Hubbard    r.    Chappel,    14    Ind. 

(n)  Laughery  v.  McLean,   14   Ind.  601;    Rogers   v.   Place,   29    Ind.   677; 

106;  Starkie  v.  Neese,  30  Ind.  222.  Hanna  v.  Shields,  34  Ind.  84. 

(o)  Laughery  v.  McLean,    14   Ind.         (s)  Gorham   v.  Reeves,    3   Ind.  83; 

106;    Starkie  v.  Neese,   30   Ind.  222;  Small  v.  Reeves,  14  Ind.  163;  Traster 

Church   v.  Fisher,  40   Ind.  145;    Me-  v.  Snelson,  Adm'r,  29  Ind.  96;   Hanna 

Clerkin   v.  Sutton,  29  Ind.  407;    Ma-  v.  Shields,  34  Ind.  84,  88;  Leonard  v. 

bony  v.  Robbins,  49  Ind.  146.  Bates,  1  Blkf.  172. 

(p)  Woodford  v.   Leavenworth,   14         (t)   Martin    v.  Baker,   5    Blkf    232; 

Ind.  311 ;   McClerkin  v.  Sutton,  29  Ind.  Floom  v.  Beard,  8  Blkf.  76;  Van  Nest 

407;  Hannah  v.  Henderson,  4  Ind.  174;  v.    Kellum,    lo    Ind.   264;    Jordan    ». 

Reasoner  v.  Edinundson,  5  Ind.  393.  Blackmore,   20   Ind.   419;    Hanna    v. 

(q)  Small   v.  Reeves,   14   Ind.  163;  Shields,  34  Ind.  84. 


410  ANSWER.  [CIIAI'. 

against  the  payment  of  the  purchase- money  on  the  grouna  of  a  partial 
failure  of  title." 

But  the  defense  of  an  entire  or  partial  want  of  title  will  be  a  suffi- 
cient answer,  either  in  bar  or  as  a  partial  answer,  as  the  case  may  be, 
where  possession  has  not  been  taken  under  the  deed.v 

And  it  is  held  that,  where  there  is  an  actual  eviction  from  a  part  of 
the  real  estate,  the  defendant  may  plead  the  same  as  a  partial  defense. w 

But  in  this  class  ef  cases  it  must  be  shown  that  the  full  amount  due 
for  the  balance  of  the  real  estate  has  been  paid.  The  answer  must  be 
limited  to  the  amount  that  would  be  due  for  that  part  of  the  real  es- 
tate from  which  the  defendant  has  been  evicted. T(1) 

621.  "What  will  amount  to  an  eviction. — Where  the  defend- 
ant must  show  an  eviction,  the  question  arises  what  will  amount  to 
such  an  eviction  as  will  constitute  a  breach  of  the  covenant  of  war- 
ranty.    If  the  defendant   has   been   actually  deprived  of  possession 
by  an  action  of  ejectment  establishing  a  paramount  title,  there  can  be 
no  question  of  the  right  to  defend  on  this  ground.7 

The  rule  is  thus  stated :  "A  breach  of  this  covenant  is  proved  only 
by  evidence  of  actual  ouster  or  eviction  ;  but  it  need  not  be  by  force  ; 
for  if  it  appears  that  the  coveuantee  has  quietly  yielded  to  a  paramount 
title,  whether  derived  from  a  stranger  or  from  the  same  grantor,  either 
by  giving  up  possession  or  becoming  tenant  to  the  rightful  claimant,  or 
has  purchased  the  better  title,  it  is  sufficient."2 

But  where  the  defendant  relies  upon  an  eviction  where  he  has  given 
up  possession  without  a  judicial  proceeding,  or  has  bought  in  the  ad- 
verse title,  he  must  show  that  such  adverse  title  is  paramount,  not  only 
to  the  title  of  his  grantor,  but  to  all  other  persons.8  The  mere  exist- 
ence of  a  mortgage  upon  the  real  estate  is  not  a  breach  of  the  covenant 
for  quiet  enjoyment. b 

622.  Covenant  against  incumbrances. — It  is  not  sufficient,  as 

(ui  Whistler  r.  Huiks,  5   Blkf.  100;  2  Greenl.  Ev.,  §  244;  Hannah  v.  Hen- 

Stephfens  v.  Evans,  Adm'r,  30  Ind.  39.  derson,  4  Ind.  174;  Reasoner,  Adm'r, 

(v)  James    v.    The     Lawrenceburg  v.  Edmundson,  5  Ind.  393;  Burton  v. 

Ins.  Co.,  6  Blkf.  525.  Reeds,  20  Ind.  87;  Black  v.  Duncan. 

(w)  Phillips    v.    Reichert,    17    Ind.  60  Ind.  522;  Marvin  r.  Applegate,  18 

120;  Hoot  v.  Spade,  20  Ind.  326.  Ind.  425;    Crance  v.  Collenbaugh,  47 

(x)   Wiley  v.  Howard,  15  Ind.  169;  Ind.  2-36. 

Traster  v.  Snelson's  Adm'r,  29  Ind.  1)6.  (a»   Crance  r.  Collenbaugh,  47  Ind. 

(y)  Rhode  v.  Green,  26  Ind.  83.  256;  Sheetz  v.  Longlois,  69  Ind.  491. 

(z)  McClure    v.    McClure,    65    Ind.  (b)   Reasoner  v.  Edmundson,  5  Ind. 

482;  Sheetz  v.  Longlois,  69  Ind.  491 ;  393;  Clark  v.  Lineberger,  44  Ind.  223- 

(1)  Form  of  answer,  p.  358. 


XV.]  ANSWER.  411 

a  defense  of  a  breach  of  a  covenant  against  iucumbrances,  to  show 
that  an  incumbrance  existed  at  the  time  the  deed  was  executed:0 

But  the  purchaser  may  pay  off  the  iucumbrance,  and  defend  against 
the  payment  of  the  purchase-money  to  the  extent  of  the  amount  paid.'1 

And  it  is  held  that  where  the  amount  of  the  incumbrance  exceeds 
the  amount  due  on  the  purchase-money,  the  purchaser  may  enjoin  the 
collection  until  the  incumbrance  is  reduced  to  an  amount  not  exceed- 
ing the  purchase-money. e 

The  purchaser  may  remove  the  mortgage  before  it  is  due  and  use 
the  payment  as  a  defense/ 

The  fact  that  the  purchaser  had  knowledge  of  the  incumbrance  will 
not  affect  his  right  to  make  the  defense.g 

The  facts  stated  in  the  answer  must  show  that  the  incumbrance  is  a 
valid  one  and  a  lien  upon  the  land.b(l) 

623.  Covenants  in  deed  of  general  warranty. — In  this  state  it 
is  unusual  for  the  deed  to  contain  separate  and  distinct  covenants. 
The  statutory  form  of  conveyance  contains  a  general  warranty,  and  this 
form  of  deed  is  in  general  use.     It  is  important,  therefore,  to  deter- 
mine what  covenants  are  contained  in  such  a  conveyance.     The  statute 
provides,  after  giving  the  form  of  the  deed,  that  it  shall  be  held  to  be 
"a  conveyance,  in  fee  simple,  to  the  grantee,  his  heirs  and  assigns, 
with  covenant  from  the  grantor,  for  himself  and  his  heirs  and  personal  rep- 
resentatives, that  he  is  lawfully  seized  of  the  premises,  has  good,  rigid  to 
convey  the  same,  and  guaranties  tfie  quiet  possession  thereof;  that  Hie  same 
are  free  from  all  incumbrances,  and  that  lie  will  warrant  and  defend  the 
title  to  the  same  against  all  law/id  claims." 

624.  Covenants  of  married  •women. — It  has  been  held  in  this 
state  that  a  married  woman  could  not  be  held  liable  by  any  of  her 
covenants  in  a  deed.-*     But  that  where  the  deed  for  the  separate  real 

(c)  Reasoner  v.  Edmundson,  5  Ind.  (e)  Buell  v.  Tate,  7  Blkf.  55. 
393;  Oldfield  v.  Stevenson,  1  Ind.  153;  (f )  Snyder  v.  Lane,  10  Ind.  424. 
Pomeroy  v.  Burnett,  8  Blkf.  142.  (g)  Medler    v.   Hiatt,   8   Ind.   171 ; 

(d)  Small   v.  Reeves,    14   Ind.  163;  Burk   v.  Hill,  48   Ind.  52;  Snyder  v. 
Rodman  v.  Williams,  4  Blkf.  70;   Buell  Lane,  10  Ind.  424. 

r.  Tate,  7  Blkf.  55;   Smith  v.  Acker-  (h)  Cook  v.  Fuson,  66  Ind.  521. 

man,  5  Blkf.  541;    Holman  v.  Creag-  (i)   R.  S.  1881,  §  2927;    Coleman  v. 

miles,  14  Ind.  177;  Kent  v.  Cantrall,  Lyman,  42   Ind.  289;    Carver   v.  Lo- 

44  Ind.  452;  Overstreet  v.  Dobson,  28  thain,  38  Ind.  530;  Kent  v.  Cantrall,  44 

Ind.  256;  Bundy  v.  Ridenour,  63  Ind.  Ind.  452. 

406;  Black  i?.  Coan,  48  Ind.  385;  Cook  (j)  Aldridge    v.    Burlison,    3    Blkf. 

«.  Fuson   66  Ind.  521.  201 ;  Griner  v.  Butler,  61  Ind.  362. 
(1)  Form  of  answer,  Vol.  3,  p.  359. 


412  ANSWER.  [CHAP. 

estate  of  the  wife  was  made  by  husband  and  wife  jointly,  the  husband 
was  liable  on  the  covenants.15 

The  present  statute  changes  this  rule  and  provides  that  the  wife 
shall  be  "  bound  by  her  covenants  of  title." l 

This  statute  renders  her  liable  on  her  covenants  of  title  only.  It 
does  not  change  her  liability  upon  other  covenants  that  may  be  con- 
tained in  the  deed,  and  applies  only  to  conveyances  of  her  separate  real 
estate. 

625.  Discharge  in  bankruptcy. — That  the  defendant  has  been 
discharged  under  proceedings  in  bankruptcy  must  be  specially  pleaded. 
It  has  been  held  that  where  the  bankrupt  act  excepts  certain  debts,  the 
answer  must  show  that  the  debt  sued  on  is  not  within  the  exception. m 

But  it  was  not  necessary  under  the  late  bankrupt  act  that  the 
answer  should  state  the  facts  showing  that  he  was  properly  and  legally 
discharged.  It  is  sufficient  to  plead  his  discharge  in  general  terms." 

626.  Statute   of  limitations. — The   question  as  to   the  proper 
manner  of  raising  the  objection  of  the  statute  of  limitations  has  been 
considered  in  a  former  chapter.0    It  may  be  said,  in  addition,  that  the 
answer  may  be  pleaded  in  general  terms,  e.  g.,  "the  plaintiff's  cause 
of  action  did  not  accrue  within  six  years  before  the  bringing  of  this 
action." 

627.  The  statute  of  frauds. — It  must  appear  from  the  complaint 
that  the  cause  of  action  sued  on  is  not  within  the  statute  of  frauds. 
If  not,  the  complaint  is  bad  on  demurrer.? 

It  follows,  from  this  rule,  that  the  facts  showing  the  contract  to  be 
within  the  statute  of  frauds  need  not  be  specially  pleaded  by  way  of 
answer. q 

628.  Fraud. — Where  the  defendant  relies  upon  fraud  as  a  defense, 
the  facts  constituting  the  fraud  must  be  specially  pleaded.1"    And  the 
facts  must  be  such  as  to  show  that  he  relied  upon  and  was  influenced  by 
the  fraudulent  acts  charged,  if  they  are  affirmative  acts,  and  that  he  was 

(k)  Griner  v.  Butler,  61  Ind.  362.  Hazelrig,  45  Ind.  576;  The  Western 

(1)  R.  S.  1881,  £§5117.  5118.  Union   Tel.    Co.  v.   Hopkins,   49   Ind. 

(m)  Sorden  v.  Gatewood,  1  Ind.  107.  223;  Suman  v.  Springate,  67  Ind.  115; 

(n)  Hays  v.  Ford,  55  Ind.  52.  McMillen  v.  Terrell,  23  Ind.  163. 

(o)  Ante,  §g  307,  308,  309,  and  an-  (r)  Curry  v.  Keyser,  30  Ind.  214; 

thorities  cited.  Daniel  v.  Rowland,  30  Ind.  342;  Ham 

(p)  Ante,  §  514;  Krolm  v.  Bautz,  68  v.  Greve,  34  Ind.  18 ;  Joest  v.  Williams, 

Ind.  277.  42  Ind.  565 ;  Langsdale  v.  Girton,  Ex'r, 

(q)    Bliss'   Code   PI.,  §  353;     Fall  r.  51  Ind.  99. 


XV.]  ANSWER.  413 

influenced  by  the  fraud  to  enter  into  a  contract  that  he  would  not 
otherwise  have  made.8 

A  contract  procured  by  fraud  is  not  void  but  voidable,  and  if  it  has 
been  executed  wholly  or  in  part  by  the  opposite  party  it  is  necessary 
that  the  defendant  should  show  that  he  has  placed  or  offered  to  place 
the  plaintiff  in  statu  quo,  by  returning  or  offering  to  return  what  he 
has  received  on  the  contract.1 

629.  Adverse  possession  of  real  estate. — In  actions  to  recover 
real  estate  the  defense  of  title  by  adverse  possession  need  not  be  spec- 
ially pleaded,  as  all  defenses  may  be  given  in  evidence  under  the  gen- 
eral denial.  In  other  cases,  as  in  partition,  where  the  question  of  title 
arises,  a  defendant  may  rely  upon  adverse  possession,  and  in  such  cases 
the  defense  must  be  specially  pleaded." 

An  answer  of  adverse  possession  must  allege  the  possession  to  have 
been  held  continuously  for  twenty  years,  and  that  it  was  exclusive  and 
adverse. 

There  is  some  confusion  in  the  books  as  to  the  question  whether  the 
possession  must  be  under  color  of  title  or  claim  of  ownership.  It  was 
held  in  the  earlier  cases  that  the  occupation  must  have  been  under  a 
claim -of  ownership  in  the  premises,  and  that  the  claim  must  be  under 
color  of  title.' 

In  some  cases  the  possession,  to  be  adverse,  must  undoubtedly  be 
under  color  of  title.  This  has  been  held  under  the  rule  that  a  deed 
for  real  estate  while  in  the  adverse  possession  of  a  third  party  is  void." 

But  the  later  cases  hold  that,  under  the  statute  of  limitations,  the 
possession  to  be  adverse  need  not  be  under  color  of  title  or  claim  of 
ownership^ 

This  rule  is  based  upon  the  statute  of  limitations,  and  applies  to 
cases  where  the  possession  is  set  up  as  a  defense  under  that  statute ; 
but  the  general'rule  is  as  first  stated,  that  the  occupancy  must  be  un- 
der color  of  title. y  The  presumption  of  law  is,  that  a  party  who  holds 

(s)  Hess».  Young,  59  Ind.  379  ;  Over  v.  Holley,  11  Ind.  2;  Doe  v.  Herrick, 

v.  Hitherington,  66  Ind.365;  Neidefer  14   Ind.   242;    Moore   v.   Worley,   24 

v.  Chastain,  71  Ind.  368.  Ind.  81. 

(t)  Joest  v.  Williams,  42  Ind.  565;  (w)   Moore  v.  "Worley,  24  Ind.  81; 

McGuire    v.    Callahan,    10    Ind.   128;  Bauman  t'.Grubbs,  26  Ind.  419;  Steeple 

Haaseu.  Mitchell,  58  Ind.  213.  v.    Downing,  GO   Ind.   478;  Buckle  v. 

(u)  Winslow  v.  Winslow,  52  Ind.  8  ;  Taggart,  62  Ind.  236. 

Sanford  v.  Tucker,  /U  Ind.  219.  (x)    Banman  v.  Grubbs,  26  Ind.  419; 

(v)  Law  v.  Smith,  4  Ind.  56;   Duev.  Hargis  ?.-.  The  Inhabitants  of  Congres?- 

Brown,  4  Ind.  143;  Hearick  v.  Doe.  4  ional  Township,  etc.,  29  Ind.  70. 

Ind.  1G4;   Bell  v.  Longworth, -6  Ind.  (y)   Buckley  v.  Taggart,  62  Ind.  236. 
•J7:1, ;   Ball  v.  Cox,  7  Ind.  453;  Wiggins 


414  ANSWER.  [CHAP. 

without  right  or  claim  of  right  holds  in  subservience  to  the  legal 
owner. 

The  rule  is  not  uniform  in  the  different  states.  In  some  it  is  held 
that,  even  under  the  statute  of  limitations,  there  must  be  an  occupancy 
under  a  claim  of  right  with  color  of  title.2 

But  in  most  of  the  states  color  of  title  is  not  necessary  to  constitute 
adverse  possession,  but  the  occupancy  must  be  under  a  claim  of  owner- 
ship.* 

In  others  it  is  not  necessary  that  the  occupancy  should  be  under  a 
claim  of  ownership.15 

Where  adverse  possession  is  relied  upon,  under  the  statute  of  limita- 
tions, all  the  facts  may  be  proved  under  the  general  plea  of  the  statute. 

630.  Release  or  other  discharge. — A  release  or  other  discharge 
from  liability  is  new  matter  that  must  be  specially  pleaded.  And 
where  a  release  of  one  party  to  a  contract  is  pleaded  by  another  jointly 
liable  with  him  the  same  rule  applies.  But  there  are  cases  in  which 
an  answer  of  release  by  one  defendant  will  inure  to  the  benefit  of  an- 
other who  makes  no  defense  but  suffers  a  default;  e.  g.,  it  has  been 
held  that  in  an  action  against  a  principal  and  surety  jointly  liable, 
where  the  principal  pleads  and  proves  a  release,  no  judgment  can  be 
taken  against  the  surety  who  has  suffered  a  default.6 

And  the  same  rule  has  been  applied  to  other  joint  obligations  where 
the  relation  of  principal  and  surety  did  not  exist. d 

But  it  has  been  held  that  the  release  of  an  infant,  by  dismissing  the 
action  as  to  him,  will  not  release  the  other  joint  contractor.6 

It  is  sufficient  to  show  that  a  contract,  not  under  seal,  has  been  re- 
leased by  parol.f 

And  this  rule  has  been  applied  to  actions  for  libel.g 

But  the  release  must  be  upon  a  valuable  consideration. hO) 

(z)  Ferguson    v.    Kenedy,    14   Am.         (c)  Thomas  v.  Wilson,  6  Blkf.  203. 
Dec.  761,  764,  and  note ;  s.  c.,  Peck,  321.         (d)  Thomas  v.  Wilson,  6  Blkf.  203  ; 

(a)  See  note  to  Ferguson  v.  Kenedy,  Tuttle  v.  Cooper,  10  Pick.  281  ;  Allen 
14  Am.  Dec.  764 ;  La  Frombois  v.  Jack-  v.  Wheatly,  3  Blkf.  332. 

son,  18  Am.  Dec.  463,  and  note,  p.  489;  (e)  Kirby  ?-.  Cannon,  9  Ind.  371. 

s.  c.,  8  Cow.  589;  Munsbower  v.  Pat-  (f)  Devilin  v,  Ri^gsly,  4  Ind.  464 ; 

ton,  13  Am.  Dec.  678;  s.  c.,  10  Serg.  &  Leviston  v.  The  Junction  R.  R.  Co.,  7 

Rawle,  334;  French  v.  Pearce,  21  Am.  Ind.  597. 

Dec.  680,  and  note;  s.  c.,  8  Cow.. 439;  (g)  Gabe  v.  McGinnis,  68  Ind.  538. 

Rung  v.  Shoneberger,  26  Am.  Dec.  95,  (h)  Carter  v.  Zenblin,   68  Ind.  436; 

102,  and  note;  s.  c.,  2  Watts,  23.  Harris  v.  Boone,  69  Ind.  300. 

(b)  Bryan  v.  Atwater,  5  Am.  Dec.  (1)  Forms  of  answers,  Vol.  3,  p.  396. 
136,  142,  and  note;  s.  c.,  5  Day,  181. 


XV.]  ANSWER.  415 

ANSWERS   IN   LIBEL  AND   SLANDER.(l) 

631.  Mitigation  of  damages. — We  have  seen  that,  as  a  general 
rule  in  this  state,  matters  in  mitigation  of  damages  may  be  given  in 
evidence  under  the  general  denial.'  • 

This  rule  applies  to  actions  for  slander  and  libel.J 

But  in  this  class  of  cases  the  defendant  is  authorized,  by  statute,  to 
plead  specially  matters  in  mitigation, k  and  therefore  such  pleading  is 
proper  but  not  necessary.1  The  answer  should  not  be  pleaded  in  bar 
of  the  action."1 

632.  Truth  of  the  words. — It  is  sufficient  defense  to  the  action 
to  allege  the  truth  of  the  matter  charged,  but  the  truth  of  the  words 
can  not  be  given  in  evidence  under  the  general  denial,  either  as  estab- 
lishing a  defense  or  in  mitigation  of  damages." 

When  the  words  set  out  in  the  complaint  charge  a  specific  crime 
against  the  plaintiff,  it  has  been  held  sufficient  to  allege  the  truth  of 
the  words  in  general  terms.0  But  in  the  same  case  it  is  held  that 
where  the  words  charged  are  general  the  answer  must  be  specific.  The 
charge  in  the  case  cited  was  that  the  plaintiff  was  a  whore.  It  was 
held  that  an  answer  alleging  that  she  was  of  notorious  bad  character 
for  chastity,  and  that  the  words  were  true,  was  bad  as  being  too  gen- 
eral. 

The  mere  allegation  that  the  words  spoken  were  true  is  not  sufficient. 
The  answer  should  contain  affirmative  allegations  sufficient  to  show  that 
the  plaintiff  was  guilty  of  the  offense  imputed  by  the  words  charged, 
and  that  the  words  were  true  in  the  sense  in  which  they  are  alleged  to 
have  been  spoken. p 

The  answer,  if  pleaded  in  bar  of  the  action,  must  justify  the  ma- 
terial part  of  every  set  of  words  charged  in  the  complaint."1 

But  the  answer  may  be  pleaded  to  a  part  only  of  the  words  charged, 

(i)  Ante,  §580.  (n)  K.  S.  1881,  §  373;    Heilman   v. 

(j)  Henson  v.  Veatch,  1   Blkf.  369;  *Shanklin,    60    Ind.    424;    Henson   v. 

Richardson    v.    Barker,    7    Ind.   567;  Veatch,  1  Blkf.  369. 

Skillen  v.  Phillips,  23  Ind.  229;  O'Con-  (o)  Sunman  v.  Brewin,  52  Ind.  140. 

ner  v.  O'Conner,  27  Ind.  69;  Swinney  (p)  Downey  v.  Dillon,  52  Ind.  442; 

v.  Nave,  22  Ind.  178;   Blickenstaff  v.  Sunman     v.    Brewin,     52    Ind.    140; 

Perrin,  27  Ind.  527.  Townsend   on   Slander   and    Libel,   £ 

(k)  R.  S.  1881,  \  373.  215;     DeArmond    v.    Armstrong,   37 

(1)  Jauch  v.  Jauch,  50  Ind.  135.  Ind.  35. 

(m)  Mouslerv.  Harding,  33  Ind.  176;  (q)  Townsend  on  Slander  and  Libel, 

Wilson  v.  Barnett,  45  Ind.  163.  §  213. 

(1)  Forms  of  answer,  Vol.  3,  pp.  389, 
390. 


416  ANSWER.  [CHAP. 

and  should  be  so  pleaded  where  the  truth  of  only  a  part  can  be  estab- 
lished at  the  trial. r 

Where  the  answer  is  pleaded  in  bar  of  the  entire  cause  of  action,  the 
evidence  must  establish  the  truth  of  all  of  the  words,  or  the  defense 
must-fail  as  one  in  bar ;  but  the  evidence,  if  it  strongly  tends  to  es- 
tablish the  truth  of  the  words,  and  that  the  defendant  from  the  plaint- 
iff's conduct  had  reason  to  believe  them  to  be  true,  may  be  considered 
in  mitigation  of  damages.8 

Under  the  plea  of  justification  it  may  be  proved  in  mitigation  of 
damages  that  there  was  a  general  rumor  that  the  plaintiff  had  been 
guilty  of  the  crime  imputed  by  the  words  charged.' 

633.  In  tort  generally. — The  rule  in  all  actions  for  tort  is  the 
same  as  in  libel  and  slander.     Matters  that  go  in  mitigation  of  dam- 
ages only  may  be  proved  under  the  general  denial  as  well  as  every  fact 
that  goes  to  negative  the  plaintiff's  cause  of  action.11 

Matter  in  justification  is  new  matter  in  confession  and  avoidance, 
and  must  be  specially  pleaded." 

Some  of  the  authorities  in  this  state  can  not  be  reconciled  with  this 
rule.  It  has  been  held  that  a  grand  juror  may,  under  the  general  de- 
nial, prove  that  the  words  charged  were  spoken  under1  justifiable  cir- 
cumstances, while  acting  as  such." 

It  is  difficult  to  see  upon  what  rule  of  pleading  this  decision  can  be 
justified.  It  is  matter  in  bar  by  way  of  justification,  and  is  clearly 
new  matter. 

634.  What  must  be  pleaded  specially  by  executors  and 
administrators. — The  statute  regulating  the  settlement  of  decedents' 
estates,  provides  that  when  any  action  is  transferred  to  the  list  of  claims 
pending  for  trial,  it  shall  not  be  necessary  for  the  executor  or  adminis- 
ter to  plead  any  matter  by  way  of  answer,  except  a  set-off  or  counter- 
claim to  which  the  plaintiff  shall  reply. * 

The  executor  or  administrator  may  plead  matters  of  defense  specially, 
but  it  is  unnecessary. 

(r)  Townsend  on  Slander  and  Libel,  (t)  Heilmtin  v.  Shanklin,  GO  Ind.  424. 

§  212;  Tull  v.  David,  27  Ind.  377.  (u)  Ante,  §  580. 

(s)  Byrket  r.  Monohon,  7  Hlkf.  83;  (v)  Pom.  Rem.,  §§  704,  705. 

Landis  v.  Shanklin,  1  Ind.  92;  Heil-  (w)  Hunter  r.  Mathis,  40  Ind.  356. 

man  v.  Shanklin,  60  Ind.  424.  (x)  R.  S.  1881,  §  2324. 


XV.]  ANSWER.  417 

ANSWERS   THAT    MUST   BE   VERIFIED. 

635.  Non  est  factum. — Answers  that  must  be  sworn  to  are  mostly 
in  abatement,  and  such  have  been  considered. y 

The  defense  of  non  e*t  factum  has  been  partially  considered  in  treat- 
ing of  the  general  denial.2 

It  has  been  held  that  the  general  denial  sworn  to  is,  in  effect,  the  de 
nial  of  the  execution  of  the  instrument,  but  such  pleading  should  not 
be  encouraged.  It  is  sufficient  to  deny,  in  general  terms,  the  execu- 
tion of  the  instrument.  This  is  true  where  it  is  claimed  that  the  writ- 
ten instrument  was  never  delivered,  although  signed  by  the  party,  or 
where  it  is  claimed  that  the  instrument  has  been  materially  altered. 
Under  a  general  plea  of  non  est  factum,  it  is  competent  to  prove  every  fact 
tending  to  show  that  the  instrument  as  sued  upon  Avas  not  executed  by 
the  party  sought  to  be  Charged. a 

It  is  said  by  Mr.  Iglehart  that  the  defendant  may,  under  a  plea  of 
non  est  factum,  defeat  the  action  by  proving  coverture,  idiocy,  lunacy, 
or  fraud  and  deceit  in  procuring  the  execution.  No  authority  is  cited 
to  establish  the  proposition  that  evidence  of  fraud  or  deceit  in  procur- 
ing the  execution  of  the  instrument  is  competent  under  the  plea  of  non 
e«t  factum.  It  must  be  regarded  as  very  bad  pleading  to  rely  upon  a 
denial  of  the  execution  of  a  writing  as  sufficient  to  put  in  issue  the 
question  of  fraud  or  deceit  ih  procuring  its  execution.  If  such  evi- 
dence is  competent,  it  must  be  upon  the  ground  that  to  prove  that  a 
writing  was  procured  by  fraud  is  to  prove  that  it  was  not  executed.  If 
so,  an  answer  of  fraud,  being  a  denial  of  the  execution  of  the  instru- 
ment, must  necessarily  be  verified  to  render  it  sufficient.  Fraud  in  the 
procurement  of  the  execution  of  the  contract  is  clearly  new  matter 
that  must  be  specially  pleaded,  and  the  facts  constituting  the  fraud 
must  be  stated. b 

To  allow  proof  of  fraud  under  a  general  plea  of  non  est  factum  would 
be  a  plain  violation  of  this  rule.c 

Although  the  defendant  may  prove  under  the  general  plea  of  non  e#t 
factum  any  fact  tending  to  show  that  the  instrument  sued  upon  was  not 
executed  by  him,  he  may,  nevertheless,  plead  the  facts  specially,  and 

(y)  Ante,  §  563  et  seq.  Huston  r.  Williams,  3  Blkf.  170;  Johns 

(z)  Ante,  £583.  v  Harrison,  20  Ind.  317;  Hill  v.  Jones, 

(a)  Iglehart's  Prac.  59,  60,  §§  37,  38.  14  Ind.  389;   Byers  r.  Daugherty,  40 

(b)  Ante,  §  628.  Ind.  198;  Kimble  v.  Christie,  55  Ind. 

(c)  Thomas  r.  Ruddell,  66  Ind.  326;  140. 

27 


418  ANSWER.  [CHAP. 

if  the  facts  stated  are  sufficient  to  show  that  he  did  not  execute  the 
instrument  it  is  sufficient.  Either  form  of  pleading  is  proper.d 

But  whether  the  answer  is  general,  or  states  the  facts  specially,  it 
must  be  verified.6 

The  answer  is  good,  however,  without  verification.  It  is  good  as 
a  general  denial,  but  does  not  put  in  issue  the  execution  of  the  in- 
strument/ and  the  want  of  verification  can  not  be  reached  by  de- 
murrer.g 

636.  Non  est  factum  by  executors  and  administrators.— 
The  rule  that  an  answer  denying  the  execution  of  an  instrument  made 
the  foundation  of  the  action  must  be  sworn  to,  does  not  apply  to  ex- 
ecutors* and  administrators  where  the  action  is  brought  upon  a  writing 
purporting  to  have  been  executed  by  the  decedent.11 

And,  under  the  present  decedents'  act,  as  tbje  qxecutor  or  adminis- 
trator is  not  required  to  plead  specially  any  thing  except  a  set-off  or 
counterclaim,  the  execution  of  the  instrument  may  be  controverted 
without  any  pleading.' 

637.  No  answer  in  proceedings  supplementary  to  execu- 
tion.— The  statute  regulating  proceedings  supplementary  to  execution 
provides  that,  after  the  order  has  been  made  requiring  parties  to  ap- 
pear and  answer,  the  proceedings  shall  be  summary,  without  further 
pleadings,  upon  the  oral  examination  and  testimony  of  parties  and 
witnesses.-* 

It  has  been  held,  in  a  number  of  the  earlier  cases,  that  no  pleadings 
were  contemplated  by  the  former  statute,  and  that  none  were  proper.k 

(d)  Henry  v.  Coats,   17   Ind.   161;  (g)  Newby  r.  Rogers,  54  Ind.  193. 
Bowers  r.  Briggs,20  Ind.  139;  Coburn  (h)  Hunter   r.   Probst,  47  Ind.  359; 
r.    Webb,  56  Ind.   96;    The   State   v.  Barnett's  Adm'r  v.  The  Cabinet  Mak- 
Blair,   32    Ind.   313;     Evans    v.   The  ers'    Union,   28    Ind.   254;    Cawood's 
Southern   Turnpike  Co.,  18  Ind.  101 ;  Adm'r  v.  Lee,   32    Ind.  44;    Eiser  v. 
Johns  ?:.  Harrison,  20  Ind.  317.  Snoddy,  7   Ind.  442;   Mahon's  Adm'r 

(e)  E.  S.  1881,  §  364;  Bradley  r.The  v.  Sawyer,  18  Ind.  73. 
Bank  of  the  State  of  Indiana,  20  Ind.  (i)  Ante,  §  634. 

528;  Hooker  t>.The  State,  7  Blkf.  272;  (j)  R.  S.  1881,  §  815  et  seq. 

Belton  v.  Smith,  45  Ind.  291.  (k)   Coffin  v.  McClure,  23  Ind.  356; 

(f)  McNeert).  Dipboy,  14  Ind.  18;  Carpenter  v.  Vanscotten,  20  Ind.  50; 
Magee  r.  Sanderson,  10  Ind.  261 ;  Hill  Cooke  v.  Ross,  22  Ind.  157;  Iglehart's 
r.  Jones,  14  Ind.  389;  Unthank  v.  The  Prac.  336,  §  43. 

Henry  County  Turnpike  Co.,  6  Ind. 
1-25;  Byers  r.  Daugherty,  40  Ind.  198. 


XV.]  ANSWER.  419 

But  these  cases  have  been  practically  overruled  by  later  decisions, 
in  which  it  was  held  that  pleadings  might  properly  be  filed  and  issues 
formed  and  decided,  as  in  other  cases.1 

The  present  statute  changes  this  rule. 

ANSWERS   PUIS   DARREIN   CONTINUANCE. 

638.  "When  and  how  pleaded. — The  defendant  may,  after  the 
cause  has  been  put  at  issue,  plead  a  defense  which  did  not  exist  at  the 
time  when  he  was  called  upon  to  plead.  The  answer  may  be  either  in 
abatement  or  in  bar.m 

The  sufficiency  of  the  answer  is  governed  by  the  same  rules  as  other 
answers,  but  it  should  be  shown  on  the  face  of  the  pleading  that  the 
defense  has  accrued  since  the  last  continuance.  The  rule  at  common 
law  was,  that  a  plea  puis  darrein  continuance  was  an  abandonment  of 
all  former  defenses,  but  this  is  not  the  rule  under  the  code.  But,  un- 
der the  present  statute,  if  the  answer  is  in  abatement  it  must  amount 
to  a  withdrawal  of  the  answers  to  the  merits,  as  the  answer  in  abate- 
ment must  be  first  tried  and  determined." 

A  contrary  doctrine  is  laid  down  by  Mr.  Iglehart  in  his  work  on 
Practice,  but,  as  the  code  then  stood,  answers  in  abatement  and  to  the 
merits  were  tried  together,  and  the  answer,  whether  in  abatement  or 
in  bar,  might  be  regarded  as  a  supplemental  pleading.0 

(1)  Kouth  v.  Spencer,  30  Ind.  348;     Howes,   68   Ind.    458;    McMahan    v. 
Fillson  v.  Scott,  15  Ind.  187;  Banty  v.     Works,  72  Ind.  19;  ante,  §  547. 
Buckles,  68  Ind.  49;  The  Toledo,  Wa-         (m)  Iglehart's  Prac.  66. 
bash    and  Western    Kail  way   Co.    v.        (n)  R.  S.  1881,  §  365. 

(o)  Iglehart's  Prac.,  p.  67,  §  68. 


SET-OFF — COUNTERCLAIM. 


[CHAP. 


CHAPTER   XVI. 


SET-OFF—COUNTERCLAIM. 


SECTION. 

SET-OFF. 

639.  The  statute. 

640.  Nature  of  set-off. 

641.  Only  allowed  in  actions  for  money 

demands  on  contract. 

642.  May  be  pleaded   where   plaintiff 

treats  tort  as  contract. 

643.  The  set-off  must  consist  of  matter 

arising  out  of  debt,  duty,  or  con- 
tract. 

044.  Tort  may  be  treated  as  contract, 
and  pleaded  as  a  set-off. 

645.  Damages  need  not  be  liquidated. 

646.  Demands  must  be  mutual. 

647.  Exception  to  rule  that  demands 

must  be  mutual;  suretyship. 
»>48.  Where  plaintiff  holds  claim  sued 
on  as  trustee,  defendant  may  set 
off  demand  existing  in  his  favor 
against  the  cestui  que  Irust. 

649.  Set-off  may    be   pleaded   against 

assignee. 

650.  Rule  where  note  sued  on  is  gov- 

erned by  the  law-merchant. 

651.  Set-off   must   be  .of  a  subsisting 

debt  held  by  defendant  at  the 
time  suit  is  commenced. 

652.  Claim  barred  by  statute  of  limita- 

tions may  be  pleaded. 

653.  Surety  may  pay  debt  of  principal 

and  use  the  same  as  a  set-off. 

654.  May  be  pleaded   by  and  against 

executors  and  administrators. 

655.  Must  be  due  when  offered. 

656.  Right  of  set-off    between    banks 

and  depositors. 

657.  Set-off  can  not  be  pleaded  against 

married  women. 


SECTION. 

658.  Character  of  indebtedness   must 

be  shown  by  tike  pleading. 

659.  May  waive  set-off  and  bring  an 

independent  action. 

660.  Set-off  can  not  be  pleaded  against 

taxes. 

661.  Pleading   need    not    answer   the 

whole  complaint. 

662.  Judgment  may  be  set  off  against 

judgment. 

663.  Judgment  may  be  pleaded  as  a 

set-off  in   an  action  on  note  or 
other  indebtedness. 

COUNTERCLAIM. 

664.  The  statute. 

665.  Construction  of  the  statute. 

666.  Recoupment  merged  in  counter- 

claim. 

667.  Counterclaim  must  arise  out  of  or 

be  connected  with  the  plaintiff's 
cause  of  action. 

668.  Must  be  in  favor  of  the  defendant 

pleading  it. 

669.  Surety  can  not  plead  coun  terclaim 

in  favor  of  principal. 

670.  Part   of   defendants    may   plead 

counterclaim. 

671.  Must  be  against  the  plaintiff. 

672.  Must  impair,  affect,  or  qualify  the 

plaintiff's  right  to  relief. 

673.  Cause  of  action  in  plaintiff  need 

not  be  admitted. 

674.  Equitable  cause  of  action  may  be 

pleaded. 

675.  Counterclaim  must  exist  when  the 

action  is  commenced. 

676.  Tort  can  not  be  pleaded  as  coun- 

terclaim. 


XVi.j  SET-OFF — COUNTERCLAIM.  421 

677.  Pleading  can  not  perform  double     680.  Mu«t  plead   cause  of  action  as  a 

office   of   answer   and   counter-  counter-claim,   or  pay   cost    of 

claim.  subsequent  action  thereon. 

678.  Will  be  construed  to  be  either  an-     681.  Dismissal    of  original   complaint 

swer  or  counterclaim,  according  does  not  affect  counterclaim, 

to  the  facts  stated.  682.  Cross-complaint  unknown  to  the 

679.  Demurrer  to  pleading  as  an  an-  code. 

swer    does    not    reach    defects 
therein  as  a  counterclaim. 

639.  The  statute. — "  Sec.  348.  A  set-off  shall  be  allowed  only  in' 
actions  for  money  demands  on  contract,  and  must  consist  of  matter 
arising  out  of  debt,  duty,  or  contract  liquidated  or  not,  held  by  the  de- 
fendant at  the  time  the  suit  was  commenced,  and  matured  at  or  before 
the  time  it  is  offered  as  a  set-off. 

"Sec.  349.  In  all  actions,  upon  a  note  or  other  contract,  against 
several  defendants,  any  one  of  whom  is  principal  and  the  others 
sureties  therein,  any  claim  upon  contract  in  favor  of  the  principal  de- 
fendant, and  against  the  plaintiff  or  any  former  holder  of  the  note  or 
other  contract,  may  be  pleaded  as  a  set-off  by  the  principal  or  any 
other  defendant."8 

640.  Nature  of  set-off. — The  codes  of  the  different  states  differ 
materially  as  to  the  right  of  set-off.     In  some  of  the  states  set-off,  as 
such,  is  not  recognized,  but  what  our  statute  defines  as  a  set-off  is  in- 
cluded in  the  general  definition  of  a  counterclaim. b 

In  those  states  where  no  set-off  is  provided  for  in  terms  there  are 
two  classes  of  counterclaims,  one  of  which  corresponds  very  nearly  to 
our  set-off.0 

There  is  a  sufficient  difference  in  the  language  of  other  codes  and 
the  code  of  this  state  to  render  the  adjudicated  cases  of  other  states  of 
but  very  little  value  in  determining  the  construction  to  be  given  to  our 
statute  or  the  practice  thereunder.  Set-off  was  unknown  to  the 
common  law.  The  right  to  plead  a  set-off,  and  the  cases  in  which  it  is 
allowed,  must  be  gathered  from  the  statute  and  decided  cases  under  it. 
Strictly  speaking  a  set-off  is  not  a  defense.  While  its  effect  is  to  pre- 
vent a  recovery  by  the  plaintiff,  either  in  whole  or  in  part,  this  is  done, 
not  by  attacking  or  disproving  the  plaintiff's  cause  of  action,  but  by 
setting  up  an  independent  cause  of  action  in  favor  of  the  defendant, 
the  effect  of  which  is  to  reduce  the  amount  of  the  plaintiff's  recovery. 

(a)  R.  S.  1881,  gj}  348,  349.  roy's   Rem.,   §§   581,    726,   and   notes; 

(b)  Throops'  N.  Y.  Code,  gj}  500,  501 ;     Lovejoy  v.  Robinson,  8  Ind.  399. 
Bliss'  Code  PI.,  g  369  et  seq. ;  Pome-        (c)  Pom.  Rem.,  g  726  et  seq.,  and  au- 
thorities cited. 


422  SET-OFF — COUNTERCLAIM.  [CHAP. 

Thus  far  it  may  be  regarded  as  in  effect  a  defense.  But  the  right  of 
^et-off  proceeds  farther,  and  entitles  the  defendant  to  recover  where 
the  amount  of  his  demand  exceeds  that  of  the  plaintiff.  The  earlier 
statutes  and  decided  cases  treated  set-off  purely  as  a  defense  to  be 
proved  under  the  plea  of  payment,  but  the  defendant  was  entitled  to 
recover  any  balance  found  to  be  due  him.d 

But  the  later  cases  under  the  present  statute  treat  the  pleading  as  a 
complaint  the  sufficiency  of  which  must  be  determined  as  if  the  same 
were  an  original  cause  of  action. e 

This  must  be  subject,  however,  to  the  limitations  and  restrictions  un- 
der which  the  right  of  set-off  may  be  resorted  to,  and  to  certain  ex- 
ceptions that  are  hereafter  to  be  considered. 

641.  Only  allowed  in  actions  for  money  demands  on  con- 
tract.— This  clause  of  the  statute  relates  exclusively  to  the  plaintiff's 
cause  of  action,  and  not  to  the  demand  pleaded  as  a  set-off. 

The  plaintiff's  cause  of  action  must  be  a  "  money  demand  on  contract " 
to  entitle  the  defendant  to  plead  a  set-off,  no  matter  what  the  defendant's 
cause  of  action  may  be.f 

An  action  for  "  money  demand  on  contract "  is  defined  by  statute  to 
be  an  "action  arising  out  of  contract  where  the  relief  demanded  is  a 
recovery  of  money."8 

Unless  the  plaintiff's  complaint  brings  his  cause  of  action  within 
this  definition,  there  can  be  no  right  to  plead  a  set-off. 

There  is  one  decided  case  not  in  harmony  with  this  rule,11  where  it 
was  held  that  in  an  action  for  the  wrongful  conversion  of  money  col- 
lected by  an  attorney,  he  might  recover  fees  for  his  services  by  way  of 
set-off.  But  the  rule  is  clearly  established  by  the  weight  of  authority. 

Where  the  plaintiff  joins  in  separate  paragraphs  actions  on  contract 
and  in  tort,  the  defendant  may  plead  a  set-off  to  the  cause  of  action  on 
contract.1 

642.  May  be  pleaded  where  plaintiff  treats  tort  as  con- 

(d)  Statute,   1817,   p.  41;   Hamilton  Collins  v.  Groseclose,  40  Ind.  414;  Boil 
v.   Noble,  1    Blkf.   188;   Jones  v.  Me-  v.  Simms,  60  Ind.  162;   Allen  v.  Kan- 
Grew,  1   Blkf.   192;    Coe  v.   Givan,   1  dolph,  48  Ind.  496;  Myers  v.  The  State, 
Blkf.  367;   Hanna  v.   Ewing,   3  Blkf.  45  Ind.  160. 

34;  Young  v.  Harry,  4  Blkf.  167;  (g)  Ante,  §  326;  R.  S.  1881,  §  1285; 
Hurd  v.  Earl,  4  Blkf.  184.  The  Indianapolis  &  Cincinnati  R.  R. 

(e)  Boil  v.  Simms,  60  Ind.  162;  Ken-     Co.  v.  Ballard,  22  Ind.  448. 

edy  v.  Richardson,  70  Ind.  524;  Vol.        (h)  Judah  v.  Trustees  of  Vincennes 

3,  p.  403  et  seq.;  Wills  v.  Browning,  96    University,  16  Ind.  5(5. 

Ind.  149.  (i)  Ross  v.  Faust,  54  Ind.  471. 

(H  The  Indianapolis  and  Cincinnati 
B.   R.   Co.  v.   Ballard,   22    Ind.   448; 


XVI.]  SET-OFF — COUNTERCLAIM.  423 

tract. — I  have  shown  that  in  bringing  his  action  the  plaintiff  may 
waive  the  tort  in  some  cases  and  sue  as  upon  an  implied  contract. •" 

Where  the  plaintiff  makes  his  election  to  treat  the  cause  of  action  as 
ex  contractu,  and  sues  upon  it  as  such,  the  defendant  may  plead  a  set-off 
as  in  other  cases. k 

643.  The  set-off  must  consist  of  matter  arising  out  of 
debt,  duty,  or  contract. — This  limitation  applies  to  the  defendant's 
cause  of  action,  and  although  the  plaintiff's  demand  may  be  such  as 
would  authorize  the  defendant  to  plead  a  set-off,  the  right  does  not 
exist,  unless  the  matter  upon  which  the  right  is  claimed  consists  of 
matter  arising  out  of  debt,  duty  or  contract. 

Under  this  provision  it  is  well  settled  by  authority  that  a  tort  can 
not  be  pleaded  as  a  set-off  in  any  case,  whether  the  plaintiff's  action  is 
for  a  tort  or  upon  cou tract.1 

The  statute  as  applied  to  the  defendant's  cause  of  action  is  broader 
than  that  of  the  plaintiff.  It  is  not  confined  to  contracts.  His  cause 
of  action  may  arise  out  of  a  debt  or  duty.  The  term  debt  has  a  fixed 
and  determinate  meaning  and  may  be  well  understood,  but  what  is 
meant  by  "duty"  is  not  at  all  clear.  The  supreme  court  has  decided, 
however,  what  meaning  shall  be  attached  to  the  word  as  used  in  the 
statute. m 

The  court  say :  "  It  is  claimed  that  every  right  to  damages  for  a 
tort  arises  out  of  the  duty  of  the  wrong-doer  to  pay  damages,  and 
hence,  that  such  damages  may  be  answered  by  way  of  set-off.  But 
we  think  this  proposition  is  founded  in  too  broad  a  definition  of  the 
word  duty,  as  used  in  the  statute  referred  to.  Indeed,  the  word  duty 
has  no  known  legal  signification  as  used  in  the  statute  of  set-off,  or  as 
defining  a  cause  of  action.  What  was  meant  by  it  as  used  is  not  evident 
to  a  man  of  common  understanding.  But  we  think  it  should  be  held 
to  relate  to  causes  of  action  arising  ex  contractu  upon  implied  obligations, 
and  such  as  may  arise  by  operation  of  law,  etc.  See  1  Par.  on  Cont., 
p.  4 ;  and  not  to  those  arising  ex  delicto,  unless  ,where  the  tort  may  be 
and  is  waived  and  implied  assumpsit  relied  upon.  Perhaps  in  this  lat- 

(j)  Ante,  §  355.  Co.  v.  Eallard,  22  Ind.  448;  Harris  v. 

(k)  The   Indianapolis    and   Cincin-  Kivers,  53  Ind.  216;  Zeigelmueller  v. 

nati  R.  R.  Co.  v.  Ballard,  22  Ind.  448,  Seamer,  63  Ind.  488;  Shelly  v.  Van- 

451;   Thompson   r.  Keisel,    30   X.  Y.  arsdall.  23  Ind.  543;   Rohack  v.  Powell, 

383;   Gordon  v.  Bruner,  49  Mo.  570;  36  Ind.  515. 

Pom.  Rem.,  §  772.  (m)  The    Indianapolis  and   Cincin- 

(1)  Lovejoy  r.  Robinson,  8  Ind.  390 ;  nati  R.  R.  Co.  r.  Ballard,  22  Ind.  448. 
The  Indianapolis  and  Cincinnati  R.  R. 


424  SET-OFF — COUNTERCLAIM.  [CHAP. 

ter  class  of  cases,  set-off  might  be  made  available.  We  think  such 
should  be  the  sense  given  to  the  word  duty  in  the  statute  of  set-off." 

The  cases  in  which  the  right  of  set-off  has  been  recognized  under 
the  present  statute  have  treated  the  statute  with  considerable  liberality. 
It  has  been  held  that  in  an  action  on  a  promissory  note  the  defendant 
may  plead  as  a  set-off  that  the  plaintiff  is  indebted  to  him  for  docket 
fees  as  district  attorney." 

And  where  the  purchaser  of  real  estate  has  been  compelled  to  pay 
incumbrances  upon  the  real  estate,  he  may  offset  the  amount  against  a 
claim  for  the  purchase-money.0  But  not  where  he  accepts  a  deed 
without  covenants.13 

Taxes  paid  on  real  estate  by  an  occupant  or  tenant  may  be  offset  in 
an  action  against  him  for  rent.q  But  this  is  by  virtue  of  a  special 
statute/ 

The  tenant  can  not  set  off  the  value  of  improvements  voluntarily 
made.8 

In  an  action  against  a  guardian  on  his  bond,  he  niay  recover  as  a 
set-off  for  board  or  clothing  furnished  his  ward,  and  for  services  ren- 
dered by  him  as  such  guardian,  and  the  sureties  may  take  advantage 
of  such  indebtedness  as  a  defense.* 

In  an  action  against  the  guardian  by  a  third  party,  for  board  and 
clothing  for  the  wards,  he  may  set  off  the  value  of  the  ward's  ser- 
vices." 

In  an  action  against  an  attorney  or  agent,  for  money  collected  by 
him,  he  may  set  off  an  amount  due  from  the  principal  to  him  on  a 
note.T 

644.  Tort  may  be  treated  as  contract,  and  pleaded  as 
set-off. — The  question  whether  a  defendant  may  waive  a  tort,  and 
plead  the  cause  of  action  as  a  set-off,  is  not  well  settled. w  It  is  per- 
mitted in  Kentucky.1  In  New  York  it  is  held  the  other  way.y 

No  reason  is  apparent  why  the  defendant  should  not  have  the  right 
to  plead  a  matter  as  a  get-off  where  he  could  sue  upon  it  as  arising  ex 
contractu  in  an  independent  action. 

Under  our  practice  the  pleading  in  set-off  is,  in  effect,  a  new  cause 

(n)  Law  v.  Vierling,  45  Ind.  25.  (u)  Lewis  r.  Edwards,  44  Ind.  333. 

(o)  Swindell  r.  Kichey,  41  Ind.  281.  (v)  Noble  v.  Leary,  37  Ind.  186. 

(p)  Athertcm  v.  Toney,  43  Ind.  211.  (w)  Bliss'  Code-  Pi.,  \  381. 

(q)  Grossman  v.  Lauber,  29  Ind.  618.  ix)  Eversole  v.  Moore,  3  Bush.  49; 

(r)  R.  S.  1881,  I  6452.  Haddix  v.  Wilson,  3  Bush.  527. 

(s)  Grossman  v.  Lauber,  29  Ind.  618.  (y)  Chambers  v.  Lewis,  11  Abb.  Pr. 

(t)  Myers  v.  The  State,  45  Ind.  160;  210. 
The  State  v.  Clark,  16  Ind.  97. 


XVI.]  SET-OFF — COUNTERCLAIM.  425 

of  action  on  the  part  of  the  defendant,  and  is  so  treated  by  the  later 
cases ; z  and  where  the  defendant,  in  his  pleading,  elects  to  treat  his 
cause  of  action  as  an  implied  contract,  it  must  be  so  considered  for  the 
purposes  of  the  action.  If  it  is,  in  fact,  a  cause  of  action  upon  con- 
tract, it  falls  within  the  statute,  and  should  be  regarded  as  a  proper 
set-off.8 

The  pleading  should  clearly  show  a  waiver  of  the  tort  to  entitle  the 
defendant  to  relief.b 

645.  Damages   need  not   be   liquidated. — Under  the  earlier 
statutes  and  decided  cases,  in  order  to  entitle  a  defendant  to  plead  a 
set-off  his  demand  must  have  been  for  a  liquidated  amount.6     But  the 
present  statute  applies  expressly  to  demands,  whether  liquidated  or 
not.d 

The  rule  that  unliquidated  demands  may  be  set  off  has  been  applied 
to  such  demands  between  partners  where  the  partnership  has  been  dis- 
solved.6 

646.  Demands  must  be  mutual. — As  a  rule,  only  demands  be- 
tween the  plaintiff  and  defendant  can  be  set  off.     This  rule  is  enforced 
where  defendants  are  sued  jointly.     Neither  can  set  off  a  demand  due 
from  the  plaintiff  to  him  alone,  nor  can  a  defendant  sued  alone  set  off 
the  plaintiff's  debt  to  the  defendant  and  another/ 

It  was  held  in  an  early  case  that  a  defendant  holding  a  joint  and 
several  note  against  the  plaintiff  and  another,  might  plead  the  same  as 
a  set-off  against  the  plaintiff.8  The  authority  is  based  upon  the  ground 
that,  as  the  note  was  several,  it  was  the  individual  indebtedness  of  the 
plaintiff,  upon  which  he  might  have  been  sued  alone,  and  that  there- 
fore the  note  was  a  legitimate  set-off  against  him  alone. h 

(z)  Ante,  §  640.  146;     Wells    r.    Teal,    5    Blkf.    306; 

(a)  Pom.  Kern..  §801.  Woods  c.  Harris,  5  Blkf.  685;  Carter 

(b)  Shelley  v.  Vanarsdoll,   23   Jnd.  r.  Berkshire,  8  Blkf.  193pMcCarty  v. 
543.  Mewhinney,  8    Ind.  513;    Johnson  v. 

(c)  Jones  v.  MoGrew,  1   Blkf.  192;  Kent,  9  Ind.  232;  Blankenship  v.  Rog- 
McKinney    r.    Bellows,    3    Blkf.    31;  ers,  10  Ind.  333;  Bone  v.  Watson,  13 
Smith  v.  Smith,  1  ln<i.  476;  Spencer  v.  Ind.  387;   Haugh  v.  Seabold,  15  Ind. 
Morgan,  5  Iii'l.  146.  343;  Griffin  v.  Cox,  30  Ind.  242;  Daw- 

(d)  Irish  v.  Snelson,  16  Ind.  365.  son  r.  Wilson,  55  Ind.  216;  First  Na- 

(e)  Irish   v.  Snolson,    16   Ind.  365;  ticnal    Bank   of  Danville  v.  Hill,   58 
Hendry  v.  Hendry,  32  Ind.  349;  Skil-  Ind.  52;  Gregg  v.  James,  12  Am.  Dec. 
len  v.  Jones,  44  Ind.  136.  151,  and  note;  s.  c.,  Breeso  (111.),  143; 

(f)  Wasson   v.  Gould,   3   Blkf.  18;  Vol.  3,  pp.  403-4U-3. 
McKinney  v.  Bellows,  3  Blkf.  31 ;  Jen-  fg)  White  r.  Roger?,  6  Blkf.  436. 
nings  v.  Shriver,  5  Blkf.  37 ;  Richard-  (h)  Gregs;   r.  James,   12   Am.   Dec. 
son  r.  The  St.  J^e  rh  Tr^n  Co.,  5  Blkf.  151,  156,  and  notes,  citing  Austin  v.  Fe- 

land,  8  Mo.  309  ;  Pitcher  v.  Patrick,  12 


426  SET-OFF — COUNTERCLAIM.  [CHAP. 

647.  Exceptions  to  rule  that  demands  must  be  mutual ; 
suretyship. — The  statute  provides  that,  iu  all  actions  upon  a  note  or 
other  contract  against  several  defendants,  any  one  of  whom  is  princi- 
pal and  the  others  sureties  therein,  any  claim  upon  contract  in  favor 
of  the  principal  defendant  and  against  the  plaintiff  or  any  former 
holder  of  the  note  or  other  contract,  may  be  pleaded  as  a  set-off  by  the 
principal  or  any  other  defendant.'  This  statute  creates  an  exception 
to  the  general  rule.  The  pleading  must  show,  in  addition  to  the  facts 
constituting  a  cause  of  action  in  favor  of  one  of  the  defendants,  that 
he  is  the  principal  in  the  note  or  contract  sued  on  by  the  plaintiff. 
Without  this  allegation  the  answer  is  insufficient,  as  the  right  to  plead 
the  set-off  is  based  upon  the  fact  that  he  is  the  principal  debtor.  J 

The  statute  does  not  authorize  a  defendant  sued  alone  to  set  off  a 
debt  owing  to  him  by  the  plaintiff  and  others  where  the  plaintiff  is 
principal,  but  the  supreme  court  has  held  that  this  may  be  done.k 

The  court  say  :  "  The  case  before  us  is  not  within  the  letter  of  the 
statute  above  set  out,  but  it  is  clearly  within  its  spirit,  and  must  be 
governed  by  it.  If  the  parties  had  been  reversed ;  that  is  to  say,  if 
the  defendants  herein  had  sued  Ulery  and  Hanes  upon  the  note  which 
is  attempted  to  be  set  off  in  this  case,  then  Ulery,  he  being  still  the 
holder  of  the  note  herein  sued  upon,  could  have  set  the  same  off  in 
the  supposed  action  against  himself  and  Haues.  That  would  have 
been  a  case  strictly  within  the  letter  of  the  statute.  We  can  not  for  a 
moment  suppose  the  legislature  intended  that  the  question  whether  two 
given  claims  might  be  set  off  against  each  other  should  depend  upon 
the  circumstance  of  one  and  not  the  other  being  sued  upon.  We  con- 
clude, therefore,  that  if  Ulery  instead  of  his  assignees  had  brought 
this  action,  the  note  offered  as  a  set-off  would  have  been  a  proper  sub- 
ject of  set-off.  The  case,  we  have  seen,  is  not  changed  by  Ulery's 
transfer  of  the  note  sued  upon.  His  assignee  stands  in  his  shoes  in 
this  respect." 

The  action  was  brought  by  the  assignee  of  the  note  sued  on,  and  the 

Am.  Dec.  54  (s.  c.,  Minor,  321);  Clark         (j)  Turner  v.  Simpson,  12  Ind.  413; 
v.  McElroy,  1  Stew.  147;  Gee  v.  Nich-  Knour  v.  Dick,  14  Ind.  20;  Larrimore 
olson,  2  Id.  512;   Carson  v.  Barnes,  1  v.  Heron,  Ileceiver,  etc.,  16  Ind.  350; 
Ala.  93;  Winston  v.  Metcalf,  6  Id.  756;  Dodge  v.  Dunham,  41  Ind.  186;  Harris 
Mitchell  v.  Burt,  9  Id.  226;  Jones  v.  v.  Rivers,  53  Ind.  216;    Daily  v.  The 
Jones,  12  Id.  244;  Sledge  v.  Swift,  53  National  Life  Ins.  Co.,  64  Ind.  1 ;  Kin- 
Id.  110;    Childerston  v.  Hammond,  9  sey  v.  The  State,  71  Ind.  32;  Stevenson 
Serg.  &  R.  68;  Stewart  v.  Coulter,  12  v.  The  State,  71  Ind.  52. 
Id.  252;  Miller  v.  Kreiter,  76  Pa.  St.         (k)  Hoffman   v.   Zollinger,  39   Ind. 
78;  Allen  v.  Mi.dUux,  40   Iowa,   124;  461. 
Vol.  3,  pp.  403-405. 
(i)  K.  S.  1881,  I  349. 


XVI.]  SET-OFF — COUNTERCLAIM.  427 

note  pleaded  as  a  set-off  was  given  by  the  assignor  as  principal  and  other 
parties  as  his  sureties.  The  pleading  must  aver  the  fact  that  the 
plaintiff  or  his  assignor,  as  the  case  may  be,  is  the  principal  in  the  note 
pleaded  as  a  set-off'. 

The  statute  gives  the  right  to  plead  the  set-off  to  the  principal  or  any 
other  defendant,  so  that  the  sureties  may  plead,  in  their  own  behalf,  the 
set-off  that  exists  in  favor  of  their  co-defendant.1 

648.  Where  plaintiff  holds  claim  sued  on  as  trustee,  de- 
fendant may  set  off  demand  existing  in  his  favor  against 
the  cestui  que  trust. — The  defendant  is  not  bound,  by  the  fact  that 
the  plaintiff  sues,  that  he  is  the  owner  of  the  claim  sued  on  or  the  real 
party  in  interest.     If  the  plaintiff  sues  as  a  trustee,  as  appears  on  the 
face  of  the  complaint,  a  set-off  against  his  beneficiary  may  be  pleaded."1 

Where  there  is  nothing  in  the  complaint  to  show  that  the  plaintiff 
is  not  the  real  party  in  interest  the  defendant  may  allege,  in  his 
answer,  the  facts  showing  that  some  other  person  is  the  real  party  in 
interest,  and  plead  a  set-off  held  by  him  against  such  person." 

But  where  the  action  is  by  a  trustee,  a  demand  held  by  the  defend- 
ant against  him  individually  can  not  be  used  as  a  set-off.  The  same 
doctrine  that  authorizes  the  set-off  against  the  cestui  que  trust  must 
necessarily  take  away  the  right  as  against  the  trustee.0 

649.  Set-off  may  be  pleaded  against  assignee. — The  assign- 
ment of  a  note  or  other  contract  does  not  prevent  the  defendant  from 
pleading  a  set-off  that  existed  in  his  favor  against  the  payee.     The 
note  in  the  hands  of  the  assignee  being  subject  to  all  defenses  that  might 
have  been  made  against  it  in  the  hands  of  the  payee,  the  defendant 
may  set  off  a  debt  due  him  from  the  payee  or  from  any  subsequent 
assignor  of  the  note.     But  the  right  is  limited  to  such  defenses  as  ex- 
isted in  his  favor  before  notice  of  assignment. p 

It  is  not  only  such  debts  as  are  due  directly  from  the  payee  of  the 
note  sued  on  and  the  defendant  that  may  be  thus  used.  He  may  ob- 

(1)  Larrimore   v.   Heron,   Receiver,  (o)  Flonrnoy  v.  The  City  of  Jeffer- 

etc.,  16  Ind.  350;  Myers  v.  The  State,  sonville,  17  Ind.  169;  Waddle  v.  Har- 

45  Ind.  160;  Vol.  ",  p.  403.  heck,  33  Ind.  231 ;  Swindell  v.  "Richey, 

(m)   Forkner   v.  Dinwiddie,  3   Ind.  41  Ind.  281. 

34;  Swindell  v.  Kichey,  41   Ind.  281;  (p)  Sample   v.    Lamb.  3   Ind.   180; 

Heavenridge  v.  Mondy,  49  Ind.  434.  Sayres  v.  Linkhart,  25  Ind.  145;  King 

(n)  Forkner  v.  Dinwiddie,  3  Ind.  v.  Conn,  25  Ind.  425;  Goldthwaite  v. 
34;  Henry  v.  Scott,  3  Ind.  412;  Wad-  Bradford,  36  Ind.  149;  Frenzel  v.  Mil- 
die  v.  Harbeck,  33  Ind.  231;  Jones  v.  ler,  37  Ind.  1;  Hoffman  v.  Zollinger, 
Hawkins,  17  Ind.  550.  39  Ind.  461 ;  Vol.  3,  p.  404. 


428     '  SET-OFF—COUNTERCLAIM.  [CHAP. 

tain  from  other  persons  the  paper  of  the  payee  or  other  assignor,  and 
if  the  same  has  been  indorsed  to  him  before  notice  of  the  assignment, 
it  is  a  valid  set-off. q 

In  this  class  of  cases,  Avhere  the  set-off  is  used  against  a  third  party, 
who  has  become  the  creditor  of  the  defendant  by  assignment,  it  must 
be  regarded,  as  between  such  parties,  as  a  defense  merely,  and  can  only 
be  effective  to  the  extent  of  the  plaintiff's  demand.  For  this  reason 
the  plaintiff  may  set  up,  by  way  of  reply,  that  the  defendant  is  in- 
debted to  the  payee  or  other  assignor,  thus  showing  that  he  has  no  de- 
fense to  the  action/ 

650.  Rule  "where  note  sued  on  is  governed  by  the  law 
merchant. — The  same  right  of  set-off  is  not  allowed  the  maker  of 
commercial  paper.  Where  the  note  is  payable  in  a  bank  in  this  state, 
and  has  been  indorsed  to  an  innocent  holder  for  a  valuable  considera- 
tion, in  the  usual  course  of  business,  before  it  is  due,  without  notice  of 
the  defense,  the  same  can  not  be  pleaded  against  the  assignee  as  in  the 
case  of  promissory  notes  made  negotiable  by  the  statute.8 

This  is  the  rule  generally,  and  applies  as  well  to  matters  of  set-off  as 
to  other  defenses. 

It  has  been  held,  however,  that  a  set-off  not  arising  out  of  the  note 
transaction  can  not  be  pleaded  against  the  assignee  without  notice, 
even  where  the  note  was  indorsed  after  maturity.* 

This  question  is  one  not  well  settled.  The  authorities  on  the  point 
are  conflicting." 

So  far  as  I  know,  the  case  cited  in  Indiana  has  never  been  over- 
ruled ;  but  there  is  no  apparent  reason  why  the  assignee  of  a  note,  who 
takes  it  after  its  discredit,  should  not  take  it  subject  to  the  defense  of 
set-off  as  well  as  other  defenses. 

The  question  of  the  maker's  right  to  defend  does  not  always  depend 
upon  notice  to  the  plaintiff.  Notwithstanding  the  plaintiff  may  have 
taken  the  paper,  with  notice  of  the  defense,  if  he  receives  it  from  an  as- 
signee without  notice,  he  is  an  innocent  holder,  and  the  defense  can 
not  be  made  against  him.T 

(q)  Usher  v    Stewart,  7    Blkf.  310;  len,  37  Ind.  541;  Strough  v.  Gear,  48 

Sayres  v.  Linkhart,  25  Ind.  145 ;  King  Ind.  100;  Vol.  3,  p.  404. 

r>.  Conn,  25  Ind.  425;   Goldthwaite  v.  (t)  Hankins  r.  Shoup,  2  Ind.  342. 

Bradford,    36    Ind     149;     Hoffman    v.  (u)  Chandler  v.  Drew,  26  Am.  Dec. 

Zollinger,  39  Ind.  401.  704,  709,  and  the  authorities  cited  in 

(r)   Dodge  v.  Dunham,  41   Ind.  18G;  the  note;  s.  c.,  6  N.  H.  469. 

post,  §  691.  (v)  Hereth  v.  The    Merchants'   Na- 

(s)  Hereth   v.  The    Merchants'  Na-  tional  Bank,  34  Ind.  380,  384;   Hascall 

tional  Bank,  34  Ind.  380;   Hall  v.  Al-  v.  Whitmore.    19    Me.  102;    Smith   v 

lli?cook.  14  Mo.  449. 


XVI.]  SET-OFF — COUNTERCLAIM.  429 

651.  Set-off  must  be  of  a  subsisting  debt  held  by  defend- 
ant at  the  time  suit  is  commenced. — There  are  authorities  hold- 
ing, in  general  terms,  that  the  defendant  can  not  plead  as  a  set-off  mat- 
ters upon  which  he  could  not  maintain  an  action  against  the  plaintiff. 

This  is  true,  as  a  general  rule.w  There  must,  of  necessity,  be  an 
indebtedness  in  favor  of  the  defendant  against  the  plaintiff,  or  against 
the  real  party  in  interest  for  whom  he  sues,  and  it  must  be  a  subsisting 
indebtedness  at  the  time  the  suit  is  commenced.1 

Prior  to  the  enactment  of  the  code,  a  demand  that  could  be  enforced 
in  a  court  of  chancery  could  not  be  set  off  in  a  court  of  law.  It  must 
be  a  demand  that  could  be  enforced  by  an  action  at  law,  or  it  was  not 
the  subject  of  set-off.y  Under  the  code  there  is  no  distinction  between 
actions  at  law  and  proceedings  in  equity,  and,  therefore,  this  rule  does 
not  now  obtain. 

The  defendant  must  be  the  owner  of  the  debt.  If  it  has  been  as- 
signed to  him  to  be  used  as  a  set-off,  and  if  not  so  used  to  be  returned 
to  the  assignor,  it  is  not  a  valid  set-off.z 

The  doctrine  that  the  defendant  must  have  a  cause  of  action  upon 
which  he  could  maintain  a  suit  against  the  plaintiff,  is  subject  to  ex- 
ceptions, which  will  be  considered  in  the  following  sections. 

652.  Claim    barred    by    statute    of   limitations    may    be 
pleaded. — A  defendant  could   not  maintain  an  action  on  a  claim 
barred  by  the  statute  of  limitations.     This  does  not  prevent  him  from 
pleading  it  as  a  set-off.     But  he  can  not  recover  upon  the  demand.     It 
can  only  be  used  as  a  defense  to  the  extent  of  the  plaintiff's  cause  of 
action.     This  is  specially  provided  by  statute.3 

653.  Surety  may  pay  debt  of  principal  and  use  the  same 
as  a  set-off. — The  surety  may  pay  the  debt  of  his  principal,  and  in 
an  action  by  the  principal  against  him   may  plead  the  amount  thus 
paid  as  a  set-off. b 

But  the  surety  can  not  pay  the  principal's  debt  before  it  is  due,  and 
thus  make  it  a  valid  set-off  before  its  maturity.  Where  he  pays  the 

(w)  Shearman  v.  Fellows, 5  Blkf. 450;  (z)  Straus  v.  Eagle  Ins.  Co.,  5  O.  P. 

Fellows  v.  Kress,  7  Blkf.  59;   Adams  r.  59  ;  Claflin  v.  Dawson,  58  Ind.  408. 

Ilodarmal,    19    Ind.    339;    Gre^s;    r.  (a)  R.  S.  1881,  §367;  Livingood  v. 

James,    12    Am.    Dec.   151;    Elmer    r.  Livingood,  tj  Blkf.  268;   Foxu..Barker, 

Crum,  8  Ind.  25.  14  Ind.  309;  Fankboner  ».  Fankhoner, 

(x)   11.    S.    1881,    g   348;     Balser    v.  20  Ind.  62;    Renniek  v.  Chandler,  50 

Wood,  69  Ind.  122.  Ind.  354;   Armstrong  v.  Caesar,  72  Ind. 

(y)  Morrison  v.  Gliddon,  7  Ind.  561 ;  280. 

Woodruff  v.  Clark,  6  Blkf.  337.  ( b)  Turner  v.  Campbell,  59  Ind.  279. 


430  SET-OFF—COUNTERCLAIM.  [CHAP. 

debt  before  it  is  due  he  may  plead  the  amount  as  a  set-off  after  the 
maturity  of  the  original  debt.c 

In  order  to  make  it  a  valid  set-off  he  must  have  paid  the  debt  be- 
fore the  commencement  of  the  suit  in  which  the  set-off  is  pleaded.*1 

Our  statute  provides:  "Sec.  352.  When  cross-demands  have  ex- 
isted between  persons  under  such  circumstances  that  one  could  be 
pleaded  as  a  counterclaim  or  set-off  to  an  action  brought  upon  the 
other,  neither  can  be  deprived  of  the  benefit  thereof  by  the  assign- 
ment or  death  of  the  other,  and  the  two  demands  must  be  deemed 
compensated  so  far  as  they  equal  each  other."  e 

Under  this  statute  the  cross-demands  must  exist  at  the  time  of  the 
death  of  one  of  the  parties,  and  the  surety  can  not  create  a  demand 
in  his  favor  by  paying  the  principal's  debt  after  his  death  and  plead  the 
same  as  a  set-off.  His  only  remedy  in  that  case  is  to  file  his  claim- 
against  the  estate  of  the  principal,  and  share  in  the  general  assets/ 

654.  May  be  pleaded  by  and  against  executors  and  admin- 
istrators.— An  executor  or  administrator  being  a  trustee  suing  for 
a  debt  due  the  estate,  the  defendant  may  plead  a  set-off  held  by  him 
against  the  decedent,  and  the  same  right  exists  in  favor  of  such  ex- 
ecutor or  administrator.8 

But  in  order  that  a  debt  may  be  pleaded  as  a  set-off  against  the  ad- 
ministrator or  executor,  it  must  have  existed  at  the  time  of  the  death 
of  the  decedent. 

It  has  been  held,  therefore,  that  where  the  suit  is  brought  by  the 
administrator  or  executor  upon  a  debt  due  the  decedent  in  his  lifetime, 
the  defendant  can  not  set-off  a  debt  due  him  from  the  estate  contracted 
since  the  decedent's  death. h 

It  is  equally  well  settled  that  where  the  administrator  or  executor 
brings  an  action  to  recover  a  debt  due  him,  as  such,  contracted  after 
the  death  of  the  decedent,  the  defendant  can  not  plead  as  a  set-off  a 
debt  due  him  by  the  decedent  in  his  lifetime.1 

It  has  been  held  that  in  an  action  by  a  sole  devisee  on  an  indebted- 
ness received  by  him  through  the  testator,  the  defendant  can  not  set-off 

(c)  Jackson  v.  Adamson,  7  Blkf.  597.  (g)  R.  S.  1881,  ?§  252,   2291,   2324; 

(d)  Balser  v.  Wood,   69   Ind.  122;  Schoonover    v.   Quick,    17    Ind.   196; 
Convery  v.  Langdon,  66  Ind.  311.  Skillen  v.  Jones,  Adm'r,  44  Ind.  136; 

(e)  R.  S.  1881,  I  352.  Henderson  v.  Whittinger,  56  Ind.  131; 

(f)  Convery   v.    Langdon,   66   Ind.  Vol.3,  p.  405;   Carter  v.  Compton,  79 
311;  Granger  v.  Granger,  6  Ohio,  35;  Ind.  37. 

Mercein  v.  Smith,  2  Hill,  210;  Water-  (h)  Convery  r.  Langdon,  66  Ind.  311. 
man  on  Set-off,  §  197.  (i)  Dayhuff  r.  Dayhuff's  Adm'r,  27 

Ind.  158;  Harte  v.  Houchin,  50  Ind.  327 


XVI.]  SET-OFF — COUNTERCLAIM.  431 

an  indebtedness  of  the  estate  contracted  since  the  testator's  death,  with- 
out showing  that  he  has  filed  his  claim  against  the  estate  or  that  the 
estate  has  been  finally  settled. j 

Where  the  administrator  sues  the  defendant  on  a  note  given  for  the 
purchase-money  for  real  estate  sold  by  him  as  such  administrator,  the 
defendant  may  set-off  the  taxes  due  on  the  real  estate  before  the  death 
of  the  intestate,  but  not  the  taxes  that  have  accrued  since  his  death. k 

655.  Must  be  due  when  offered. — The  set-off,  we  have  seen, 
must  be  of  a  debt  existing  at  the  time  the  action  is  commenced.1 

But  it  is  not  necessary  that  it  should  be  due  at  that  time.  The  stat- 
ute provides  that  the  set-off  must  be  due  at  the  time  it  is  "  offered." m 

Whether  it  is  meant  that  the  debt  must  be  due  when  it  is  pleaded 
or  when  it  is  offered  in  evidence,  may  admit  of  some  doubt.  The  su- 
preme court  has  held  in  one  case  that  the  statute  applies  to  the  time 
the  set-off  is  offered  in  evidence,  and  not  when  it  is  pleaded." 

The  court  say  :  "  The  statute  evidently  has  reference  to  two  points 
of  time,  viz.,  the  commencement  of  the  suit  and  the  time  the  matter 
is  offered  in  the  suit  by  the  defendant  as  a  set-off.  It  contemplates  that 
these  two  acts  will  naturally  be  performed  at  different  times.  The 
point  of  time  at  which  the  set-off  is  offered  is  certainly  a  later  one  than 
the  commencement  of  the  suit ;  for  at  that  time  the  defendant  offers 
no  matter  as  a  set-off. 

' '  When  in  the  progress  of  Hie  cause  is  this  second  point  of  time  ? 

"This  is  the  question  to  be  determined.  Is  it  when  the  set-off  is  pleaded 
or  wlien  it  is  offered  in  evidence  on  the  trial  ?  We  think  when  it  is  offered 
in  evidence  and  for  these  reasons : 

"1.  If  a  time  is  taken  later  than  the  commencement  of  the  suit,  no 
reason  can  be  assigned  why  it  should  be  any  other  than  the  time  of  the 
trial. 

"  2.  We  think  that  the  more  equitable  point  of  time.  If  a  defendant, 
at  the  commencement  of  a  suit,  has  a  set-off  against  the  plaintiff  which 
will  mature  before  the  time  of  trial,  the  plaintiff  ought  to  liquidate  the 
amount  of  that  set-off  upon  his  claim  before  he  sues.  The  policy  of 
the  law  should  be  to  avoid  multiplicity  of  suits.  But  there  is  great 
justice  in  limiting  this  right  of  set-off  to  claims  held  by  the  defendant 
at  the  commencement  of  the  suit,  because  it  would  work  a  hardship 
upon  the  plaintiff  to  be  compelled  on  the  trial  to  allow  a  set-off  pro- 

(j)  Tracewcll  v.  Peacock,   55   Ind.  (1)  Ante,  §  651. 

572.  (m)  Ante,  §639. 

(k)  Henderson  «.  Whittinger,  56  (n)  Shannon  r.  Wilson,  19  Ind.  111'. 
Tnd.  131. 


432  SET-OFF — COUNTERCLAIM.  [CHAP. 

cured  afterward  of  which  he  must  necessarily  have  been  ignorant  and 
in  no  wrong  for  not  crediting  upon  his  account  before  suit,  and  which 
might  defeat  a  suit  justly  commenced  whereby  he  would  be  mulct  in 
costs." 

It  must  be  admitted  that  the  reasoning  of  the  court  is  not  very  co- 
gent, but  the  point  is  directly  decided. 

In  a  later  case  the  supreme  court  say  it  is  sufficient  if  the  debt  is  due 
at  the  time  it  is  pleaded,0  but  the  question  was  not  before  the  court, 
and,  as  a  mere  dictum,  it  should  have  no  weight  against  the  earlier  de- 
cision, where  the  matter  was  thoroughly  considered. 

The  requirement  that  the  debt  shall  be  due  when  offered  as  a  set-off 
is  subject  to  exception.  A  court  of  equity  will  interpose  by  permiiting 
a  party  to  set  off  an  amount  not  yet  due  where  the  plaintiff  is  insolv- 
ent. This  can  only  be  done  where  it  would  work  a  fraud  upon  the 
defendant  to  refuse  to  permit  the  defense  to  be  made.  The  equitable 
rule  is  thus  stated  : 

"  In  that  case  the  plaintiff  evidently  labored  under  the  belief,  as  he 
does  in  this,  that  the  set-off  could  not  be  compelled  until  the  maturity 
of  his  outstanding  note,  and  it  is  now  argued  in  his  behalf  that  the 
previous  suit  was  brought  too  soon  to  obtain  the  set-off,  in  as  much  as 
the  note  was  not  then  due,  and  that  the  most  that  could  have  been 
then  accomplished  was  to  prevent  a  transfer  of  the  note  with  a  view 
of  compelling  a  set-off  at  its  maturity.  We  can  not  concur  in  that 
proposition.  It  may  be  generally  true  that  a  party  can  not  be  com- 
pelled to  receive  payment  upon  a  debt  until  its  maturity.  Ordinarily, 
there  could  be  no  object  in  requiring  it,  and  sometimes  injustice 
would  be  done  by  doing  so.  But  where  satisfaction  has  in  fact  been 
made  before  the  debt  becomes  due  and  no  injustice  can  result  from 
settling  the  fact,  courts  of  equity,  for  the  purposes  of  justice,  have 
not  hesitated  to  determine  it  by  decree.  In  compelling  an  equitable 
set-off,  the  court  proceeds  upon  the  ground  that  one  demand  is,  pro 
tanto,  a  satisfaction  of  the  other,  and  that  the  real  indebtedness  is 
merely  the  balance.  All  matters  of  interest  can  be  arranged  upon 
just  principles,  so  as  to  avoid  injury. "p 

It  has  been  held  that  the  right  of  set-off  against  administrators  or  ex- 
ecutors can  not  be  affected  by  the  solvency  or  insolvency  of  the  estate. q 

656.  Right  of  set-off  between  banks  and  depositors. — In 
the  case  of  a  general  deposit  in  a  bank,  the  bank  and  the  depositor 

(o)  Convery  v.  Langdon,  66  Ind.  311.         (q)  Convery   v.    Langdon,   66    Ind. 
(p)  Keightly  v.  Walls,  27  Ind.  384,     311,  3 1 5. 
387;  Lindsay  r.  Jackson,  2  Paige,  581. 


XVI.]  SET-OFF COUNTERCLAIM.  433 

are  regarded  as  debtor  and  creditor,1"  and  where  the  depositor  is  in- 
debted to  the  bank  the  parties  are  mutually  entitled  to  set  off  one  debt 
against  the  other,  as  in  other  cases.  The  authorities  are  that  this 
may  be  done  when  either  the  bank  or  the  depositor  becomes  insolvent.8 

But  the  right  of  set-off  dors  not  apply  to  a  special  deposit,  where  the 
bank  is  to  return  the  specific  article  deposited.  In  such  case  the  rela- 
tion cf  debtor  and  creditor  does  not  exist.  The  bank  is  merely  a 
bailee  without  hire,  and  is  bound  to  return  the  very  thing  deposited, 
and  the  right  of  set-off  does  not  exist.' 

The  same  is  true  where  the  deposit  is  made  for  a  specific  purpose. 
It  can  not  be  diverted  from  that  perpose  to  be  used  as  a  set-off  by  the 
bank." 

Deposits  in  savings  banks  stand  upon  an  entirely  different  footing, 
The  relation  of  debtor  and  creditor  does  not  arise  from  the  deposit, 
but  that  of  trustee  and  cestui  qiie  trust;  therefore  no  right  of  set-off  can 
grow  out  of  the  transaction. T 

657.  Set-off  can  not  be  pleaded  against  married  women. 
—I  have  shown  that  a  pleading  setting  up  matter  of  set-off  is,  in  ef- 
fect, a  complaint."    This  being  the  case,  an  indebtedness  claimed  as  a 
set-off  can  not  be  pleaded  against  a  married  woman,  even  to  the  extent 
of  her  demand,  unless  it  is  such  a  cause  of  action  as  could  be  enforced 
against  her  in  an  independent  action. x 

658.  Character  of  indebtedness  must   be   shown   by  the 
pleading. — Like  particularity  should  be  required  in  pleading  matter 
of  set-off  as  in  other  cases.     It  can  not  be  proved  under  the  general 

(r)  Coffin  v.  Anderson,  4  Blkf.  395;  Nat.    Bank    Reg.    420;    Demmon    v. 

R.  S.  1881,  I  2G87.  Boylston  Bank,  5  Cush.  194. 

(s)  In  the  matter  of  the  Franklin  (t)  In  the  matter  of  the  Franklin 

Bank,  19  Am.  Dec.  413,  420;  s.  c.,  1  Bank,  19  Am.  Dec.  413,  423,  and  au- 

Paige  Ch.  249;  citing  Matter  of  Van  thorities  cited   in  the  note;    Coffin  v. 

Allen,  37   Barb.  225;  Receiver  of  the  Anderson,  4  Blkf.  395;  The  Bank  of 

New    Amsterdam    Savings    Bank    v.  the  State  v.  Burton,  27  Ind.  426;    The 

Tartter,    54    How.   Pr.   385;    Colt   v.  State  r.  Clark,  4  Ind.  315. 

Brown,  12  Gray,  233;  Clark  v.  Hawk-  (u)  Wilson  v.  Dawson,  52  Ind.  513. 

ins,  5  R.I. 219;  Finnell  v.  Nesbit,  16  B.  (v)  In  the  matter  of  the  Franklin 

Mon.351;Plattv.Bentley,ll  Am.  Law  Bank,  19  Am.  Dec.  424,   note;  R.  S. 

Reg.  171 ;  McCagg  v.  Woodman,  28  111.  1881,  §  2703  et  seq. 

84;  Jones  v.  Robinson,  26  Barb.  310;  (w)  Ante,  §  640. 

Ex  parte  Howard  National   Bank,  16  (x)  Sanfordr.  Wood,  49  Ind.  165. 
28 


434  SET-OFF — COUNTERCLAIM.  [CHAP. 

denial,  nor  under  a  plea  in  bar,  but  must  be  specially  pleaded  as  a 
cause  of  action. y 

The  facts  should  be  stated  showing  the  character  of  the  indebtedness, 
so  that  it  may  appear  to  be  such  an  indebtedness  as  may  be  pleaded  as 
a  set-off.z 

Where  the  indebtedness  is  evidenced  by  a  written  instrument  the 
writing  must  be  made  a  part  of  the  pleading,8  and  where  an  account  is 
sued  upon  a  bill  of  particulars  must  be  given. b 

The  rule  that  set-off  must  be  specially  pleaded  applies  to  justices' 
courts.0 

659.  May  -waive  set-off  and  bring  an  independent  action. 
— The  defendant  is  not  bound  to  use  his  cause  of  action  as  a  set-off. 
He  may  waive  his  right  to  plead  a  set-off,  and  bring  an  independent 
action  against  the  plaintiff. d 

If  he  elects  to  bring  an  action  he  can  not  plead  the  same  indebted- 
ness as  a  set-off  while  the  action  is  pending.6 

660. — Set-off  can  not  be  pleaded  against  taxes. — It  is  the 
well-settled  rule  that  a  set-off  will  not  prevail  against  taxes  levied  for 
local  or  general  govermental  purposes/ 

661.  Pleading  need  not  answer  the  -whole  complaint. — It 
is  held  that  an  answer  which  professes    to  avoid  the  whole  complaint, 
and  amounts  to  only  a  partial  defense,  is  bad.8 

This  rule  was  applied  to  a  set-off  in  some  of  the  earlier  cases. h 

The  pleading  is  not  an  answer  in  bar,  and  the  later  cases  hold  that 

it  is  not  bad  for  not  answering  the  whole  complaint  when  it  assumes 

to  be  a  complete  defense.' 

662.  Judgment   may   be   set   off  against  judgment. — The 
right  to  set  off  mutual  judgments  rests  upon  different  grounds  from 
that  of  mutual  demands  on  contract.    The  right  does  not  depend  upon 

(y)  Brown   v.  The  College  Corner,  Blkf.  506;   Rankin  v.  Harper,  4  Ind. 

etc*  Gravel  Road  Co.,  56  Ind.  110.  585. 

<z)  Fugit  v,   Ewing,    9    Ind.    345;         (e)  Rankin  v.  Harper,  4  Ind.  585. 
Ward  v.  Bennett,  20  Ind.  440;  Benoit,         (f)  Seoby    v.    Decatur   County,    72 

Adm'r,  v. Schneider,  Adin'r,  47  Ind.  13.  Ind.  551 ;  Cooley  Taxation,  13. 

(a)  Fugit  v.  Ewing,  9  Ind.  345.  (g)  Ante,  §  588. 

(b)  Biddle  v.  Reed,  33  Ind.  529.  (h)  Conklin  v.  Waltz,  3  Ind.  396. 

(c)  Wright  v.   Potter,  38  Ind.  61;         (i)  Mullendore  v.  Scctt, 45  Ind.  113; 
R.  S.  1881,  g§  1460,  1462.  Myers  v.  The  State,  45  Ind.  160;  Ken 

(d)  Judah,  Adm'r,   v.    Brandon,    5  edy  v.  Richardson,  70  Ind  524. 


XVI.]  SET-OFF — COUNTERCLAIM.  435 

the  statute  of  set-off  alone,  but  upon  the  equitable  power  of  the  courts, 
incidental  to  their  jurisdiction  over  their  suits  and  officers.-* 

This  power  formerly  belonged  exclusively  to  the  courts  of  equitv, 
but  the  right  has  long  been  exercised  by  courts  of  law.k 

It  is  not  necessary  that  the  judgments  should  be  in  the  same  court. 
Where  the  judgments  are  mutual,  either  of  the  courts  may,  upon  a 
proper  motion,  set-off  one  against  the  other.1 

The  party  should  make  the  motion  in  the  court  in  which  he  re- 
covered his  judgment.™ 

In  order  to  transfer  the  legal  title  to  a  judgment,  the  same  must  be 
assigned  and  the  assignment  attested  as  required  by  statute  ;  n  but  an 
assignment  without  such  attestation  will  vest  the  equitable  title  in  the 
assignee  and  authorize  him  lo  set  the  same  off  against  a  judgment 
against  him.0 

Judgments,  like  other  evidences  of  indebtedness,  must  be  mutual  to 
entitle  the  parties  to  set  them  off,  but  the  same  rules  as  to  setting  off 
demands  against  the  cestui  que  trust  in  an  action  by  the  trustee,  applies 
as  in  other  cases."  It  is  also  held  that  to  effect  a  clear  equity  or  avoid 
irremediable  injustice  set-off  will  be  allowed,  though  the  debts  be  not 
mutual.  (1) 

A  judgment  against  several,  one  of  whom  is  principal,  may  be  set 
off  against  a  judgment  against  such  principal  alone. q 

The  holder  of  one  judgment  may  have  the  same  set  off  against  a 
judgment,  the  legal  title  of  which  is  in  one  person,  although  the  equi- 
table title  has  been  transferred  to  a  third  party/ 

A  judgment  for  costs  belongs  absolutely  to  the  party  recovering  it, 
although  the  costs  are  coming  to  other  parties,  and  he  may  use  the 
judgment  as  a  set-off.8 

A  judgment  is  matured  as  soon  as  it  is  rendered,  and  may  be  set  off 
against  another  judgment,  although  it  is  stayed  and  the  stay  has  not 
yet  expired.1  The  holder  of  a  judgment  can  not,  in  such  a  proceed- 
ing, claim  the  same  as  exempt." 

(j)  Duncan  v.  Bloomstock,  13  Am.        (p)  Heavenridge  v.  Mondy,  49  Ind. 

Dec.  728,  729,  and  authorities  cited  in  434;  Carter  v.  Compton,  79  Ind.  37. 
note;  s.  c.,  McCord,  318.  (1)  Cosgrove  v.  Casby,  86  Ind.  611; 

(k)  Scott  v.    Rivers,   21   Am.   Dec.  Vol.  3,  p.  405. 
646;  s.  c.,  1  Stew.  &  Porter,  24.  (q)  Brooks  v.  Harris,  41  Ind.  390. 

(1)  Hill  v.  Brinkley,  10  Ind.   102;         (r)   Williams  v.  Taylor,  69  Ind.  48; 

Brooks  v.  Harris,  41  Ind.  390;  Heaven-  Brooks  v.  Harris,  41  Ind.  390. 
ridge  v.  Mondy,  49  Ind.  434.  (?)  Hays    v.    Boyer,    59    Ind.    341; 

(m)  People   v.   Common    Pleas,   28  Herod  v.  Snyder,  61   Ind.  453. 
Am.  Dec.  495,  500,  and  note;  Cooke  v.         (t)  Hays  r.  Boyer,  59  Ind.  341 ;  Me- 

Smith,  7  Hill,  186.  loy  v.  Howk,  32  Ind.  94. 

(n)  Ante,  §  40.  (u)  Meloy  v.  Howk,  32  Ind.  94. 

(o)  Shirts  v.  Irons,  54  Ind.  13. 


436  SET-OFF — COUNTERCLAIM.  [CHAP. 

Justices  of  the  peace  may  set  off  mutual  judgments  ou  motion. v 

Where  a  party  receives  an  assignment  of  a  judgment  he  takes  it 
subject  to  all  defenses,  including  a  set-off,  if  the  indebtedness  pleaded 
as  a  set-off  existed  before  notice  to  the  judgment  defendant  of  the  as- 
signment.w 

An  order  may  be  made  setting  off  judgments  pending  an  appeal  by 
the  party  against  whom  the  motion  is  made,  but  the  order,  if  made, 
can  not  affect  the  appeal.1 

"Where  an  attorney  has  taken  a  lien  upon  a  judgment,  for  his  fees, 
by  giving  the  proper  notice  thereon,  the  judgment  can  not  be  set  off 
to  the  prejudice  of  his  lien.y 

It  has  been  held  that,  in  a  proceeding  to  set  off  mutual  judgments, 
no  pleadings  are  necessary.  The  application  may  be  made  by  mere 
motion,  and  upon  this  motion  the  whole  question  arises  without  other 
pleadings.2 

663.  Judgment  may  be  pleaded  as  a  set-off  in  an  action  on 
note  or  other  indebtedness. — Judgments  are  evidences  of  indebt- 
edness that  may  be  sued  upon.a 

Being  a  cause  of  action  upon  which  the  owner  may  sue,  a  judgment 
maybe  pleaded  as  a  set-off  the  same  as  other  evidence  of  indebtedness. b 

COUNTERCLAIM. (1) 

664.  The    statute. — "  Sec.  350.    A  counterclaim   is  any  matter 
arising  out  of  or  connected  with  the  cause  of  action  which  might  be 
the  subject  of  an  action  in  favor  of  the  defendant,  or  which  would 
tend  to  reduce  the  plaintiff's  claim  or  demand  for  damages."0 

665.  Construction   of    the    statute.  —  The   statute    defines  a 
counterclaim  in  express  terms.     The  right  to  plead  by  way  of  counter- 
claim is  not  confined,  as  in  set-off,  to  actions  on  contract,  nor  is  it  neces- 
sary that  the  cause  of  action  pleaded  should  arise  out  of  a  debt,  duty, 
or  contract.     In  this  respect  the  language  of  the  statute  is  unlimited. 

(v)  Howk  v.  Meloy,   26   Ind.   176;  Shirts  v.  Irons,  54  Ind.  13;   R.  S.  1881, 

Herod  v.  Snyder,  til  Ind.  453.  §  5276. 

(w)  Lammers  v.  Goodernan,  69  Ind.         (z)  Hill   ?;.  Brinkley,   ]0  Ind.   102; 

76;  Harper  v.  Keys,  54  Ind.  510;  Eagle  Brooks  v.  Harris,  41  Ind.  890. 
v.  Ross,  67  Ind.  110;  People  ex  rel.         (a)  Davidson   v.    Nebakc-r,  21    Ind. 

Manning  v.  New  York  Common  Pleas,  334;  Campbell  r.  Cross,  :;D  Ind.  155. 
28  Am.  Dec.  495,  500,  and  note;  s.  c.,         (b)   Herod  v.  Snyder,  48  Ind.  480; 

13  "Wendell,  649.  Reno  v.  Robertson,  Adm'r,  41  Ind.  567. 

(x)  Brooks  v.  Harris,  42  Ind.  177.  (c)  R.  S.  1881,  §  350. 

(y)  Johnsons  Ballard,  44  Ind.  270;         (1)   Forms     of    counter-claim,     pp. 

406-408. 


XVI.]  BET-OFF — COUNTERCLAIM.  437 

It  has  been  held,  however,  that  one  trespass  can  not  be  made  to  com- 
pensate another  by  way  of  counterclaim,  even  where  one  is  consequent 
upon  the  other, d  and  the  decided  cases,  as  will  be  seen  hereafter,  limit 
the  right  to  actions  on  contract. 

It  has  been  held  that  the  statute  embraces  two  classes  of  counter- 
claims : 

"1.  Such  as  are  based  upon  matters  that  may  be  the  subject  of  an 
action  in  favor  of  the  defendant  against  the  plaintiff. 

"  2.  Such  as  embrace  matters  that  go  merely  in  mitigation  of  dam- 
ages." e 

In  the  case  of  Campbell  v.  Routt,  a  distinction  was  drawn  between 
counterclaims  arising  under  these  two  branches  of  the  statutory  defini- 
tion, by  treating  the  one  as  a  cause  of  action  on  the  part  of  the  defend- 
ant, and  the  other  merely  as  a  defense. 

The  court  said  :  "A  counterclaim  of  the  first-class,  as  above  divi- 
ded, though  classed  as  an  answer,  is  evidently  like  a  set-off  in  the 
nature,  and  performs  the  office  of  a  complaint ;  and  it  must  allege 
facts  sufficient  to  entitle  the  defendant,  who  is  really  a  plaintiff  so  far 
as  the  counterclaim  is  concerned,  to  recover  a  judgment  against  the 
plaintiff,  or  it  will  be  subject  to  demurrer.  It  is  provided  by  statute, 
in  relation  to  this  class  of  counterclaims,  that  the  dismissal  of  the 
original  action  shall  not  have  the  effect  of  dismissing  the  counterclaim, 
but'the  defendant  has  the  right  to  proceed  to  the  trial  thereof."' 

It  is  doubtful  if  this  division  of  the  definition  of  a  counterclaim  and 
the  distinction  made  can  be  maintained.  Certainly  it  is  not  regarded 
in  practice,  and  in  later  cases  no  such  distinction  is  made,  but  all  mat- 
ters of  counterclaim  are  treated  as  causes  of  action,  and  the  pleading 
as  a  complaint,  which  must,  to  be  sufficient  on  demurrer,  show  a  cause 
of  action  in  favor  of  the  defendant^ 

Indeed,  it  is  difficult  to  conceive  of  a  case  where  matter  arising  out 
of  the  plaintiff's  cause  of  action,  "which  would  tend  to  reduce  the 
plaintiff's  claim  or  demand  for  damages,"  could  arise  that  would 
amount  to  an  answer,  or  constitute  a  cause  of  action  in  favor  of  the  de- 
fendant that  would  not  entitle  him  to  affirmative  relief. 

But  notwithstanding  this,  the  statute  evidently  embraces  two  differ- 
ent kinds  of  counterclaim,  one  of  which  need  only  tend  to  reduce 

(d)  Rowback    v.    Powell,    36     Ind.         (f)  Citing  2  G.  &  H.  217,  §  365.   See 
615;    Shelley  v.  Vanarsdoll,  23   Ind.     R.  S.  1881,  §  353. 

543.  (g)  Branham   v.  Johnson,   62   Ind. 

(e)  Campbell   v.  Routt,   Adm'r,  42  259;    Norris    v.   Tbarp,   65   Ind.   47; 
Ind.  410;  Standley  v.  N.  W.  Mut.  L.  Douthitt  v.  Smith,  Adm'r,  69  Ind.  463; 
Ins.  Co.,  95  Ind.  254.  Blakley  v.  Boruff,  71  Ind.  93. 


438  SET-OFF — COUNTERCLAIM.  [CHAP. 

the  plain tifFs  claim  or  demand  for  damages,  and  the  decided  cases  hold- 
ing that  the  defendants  pleading  must  show  a  cause  of  action  in  him, 
upon  which  he  could  recover  in  an  action  brought  by  him,  have 
overlooked  this  second  class  of  counterclaims.  This,  as  I  have  said, 
is  not  likely  to  result  in  any  material  misconstruction  of  the  statute, 
for  the  reason  that  every  conceivable  right  of  defense  or  counterclaim, 
it  is  believed,  may  be  made  under  the  code  without  the  aid  of  this 
clause  of  the  section.*1 

666.  Recoupment  merged  in  counterclaim. — The  doctrine 
of  counterclaim,  or  the  right  of  a  defendant  in. an  action  to  become  a 
plaintiff  by  a  cross-action,  is  wholly  of  statutory  origin.  The  same 
may  be  said  of  set-off.  Prior  to  the  code  the  two  defenses,  set-off  and 
recoupment,  existed  and  were  enforced.  A  set-off  could  only  be 
pleaded  in  actions  fordtebt,  and  the  damages  must  be  liquidated.  The 
defense  of  recoupment  was  not  governed  by  statute,  but  was  the 
growth  of  judicial  decisions. 

Recoupment,  like  set-off,  could  only  be  resorted  to  as  a  defense  in 
actions  on  contract,  but  it  was  not  necessary  that  the  damages  should 
be  liquidated.  In  recoupment  the  defense  must  be  connected  with  aud 
grow  out  of  the  plaintiff's  cause  of  action.  No  recovery  could  be 
had  by  the  defendant  under  a  plea  of  recoupment.  It  was  purely  a 
defense. 

The  defense  was  resorted  to  most  frequently  in  actions  on  contract, 
where  a  breach  of  the  contract  on  the  part  of  the  plaintiff  and  special 
damages  were  alleged  by  way  of  recoupment.' 

The  defense  of  recoupment,  in  the  respect  that  it  could  only  be  used 
to  reduce  the  amount  of  the  plaintiffs  claim  or  demand,  falls  within 
the  second  clause  of  the  statutory  definition  of  counterclaim ;  but  in 
order  to  entitle  the  defendant  to  resort  to  the  defense  he  must  show 
such  a  breach  of  the  contract  or  some  other  matter  of  defense  as  would 
entitle  him  to  sue  and  recover  against  the  plaintiff  in  an  action  by 
him.J 

Recoupment,  as  a  defense,  does  not  exist  under  the  code.  Many  of 
the  decided  cases,  and  some  of  them  late  cases,  speak  of  defenses 
pleaded  as  recoupment,  and  the  statute  regulating  interest  permits  the 
recoupment  of  illegal  interest  in  certain  cases ;  but  what  was  formerly 

(h)  But  see  Poag  v.  La  Due,  7  Ind.  Manville  v.  McCoy,  3  Ind.  148;  Clark 

r-7->.  v.   Mildridge,  5   Ind.  176;   Houstin  t; 

(i)  McKinney  v.  Springer,  3  Ind.  59.  Young,  7  Ind.  200. 
(j)  Epperly   v.    Baily,    3    Ind.   72; 


XVI.]  SET-OFF — COUNTERCLAIM.  439 

recoupment  is  included  in  the  definition  of  a  counterclaim,  and  the  su- 
preme court  has  so  decided  in  express  terms. k 

The  cases  which  recognize  the  defense  of  recoupment  as  still  existing 
only  tend  to  confusion  ;  as  such  matter  as  formerly  authorized  the  de- 
fense of  recoupment  now  constitutes  a  counterclaim,  a  cause  of  action 
and  not  a  defense.  (1) 

667.  Counterclaim  must  arise  out  of  or  be  connected  with 
the  plaintiff's  cause  of  action. — The  proper  construction  to  In- 
given  to  this  limitation  in  the  definition  of  a  counterclaim  has  given 
rise  to  much  litigation.  No  fixed  rule  can  be  established  by  which  it 
can  be  determined  whether  the  particular  matter  pleaded  is  so  nearly 
connected  with  the  cause  of  action  as"  to  fall  within  the  meaning  of  the 
statute.  In  an  early  case  this  question  was  presented  to  the  supreme 
court,  and  an  attempt  was  made  to  fix  a  definite  rule  by  which  to  de- 
termine whether  a  given  case  was  within  the  statute  or  not.1 

The  court,  after  quoting  the  statute,  say:  "  The  question  is,  what  is 
the  legal  effect  of  the  words  '  arising  out  of  or  connected  with  ?'  Do 
they  refer  to  those  matters  which  have  an  immediate  connection  with 
the  transaction,  or  do  they  include,  also,  those  which  have  a  remote  re- 
lation to  it  by  a  chain  of  circumstances  which  were  not  had  in  view  in 
its  incep'tion  ?  .  .  .  A  counterclaim  is  that  which  might  have  arisen 
out  of  or  could  have  had  some  connection  with  the  original  transaction, 
in  view  of  the  parties,  and  which,  at  the  time  the  contract  was  made, 
they  could  have  intended  might  in  some  event  give  one  party  a  claim 
against  the  other  for  compliance  or  non-compliance  with  its  provisions. 
We  refer  in  this  connection,  of  course,  to  actions  ex  contractu  only."1" 

Judicial  construction  can  not  render  the  statute  more  certain  or 
definite.  The  definition  is  perhaps  as  plain  as  it  can  be  made.  The 
question  whether  the  matter  set  up  as  a  counterclaim  is  or  is  not  a  mat- 
ter "  arising  out  of  or  connected  with  "  the  plaintiff's  cause  of  action, 
must  necessarily  continue  to  be  uncertain  in  many  cases.  Courts  are 
more  liberal  in  some  cases  than  others,  and  the  pleader,  in  a  doubtful 
case,  will  be  unable  to  find  any  general  rule  by  which  he  or  the  court 
can  be  governed.  The  case  of  Conner  v.  Winston  is  important  as  show- 
ing that  it  is  not  sufficient  that  the  matter  pleaded  should  be  remotely 
connected  with  or  the  remit  of  the  act  or  transaction  upon  which  the 
plaintiffs  claim  is  based.  It  must  be  so  nearly  connected  with  the 
plaintiff's  cause  of  action,  where  the  action  is  upon  contract,  that  it 

(k)  "Woodruff  r.  Garner,  27  Ind.  4;         (1)  Conner  v.  Winston,  7  Ind.  523. 
Pom.  Rera.,  §  736;  Vail  v.  Jones,  31         (m)  Pom.  Rem.,  §  771. 
Ind.  467.  (1)  Vol.  3,  p.  408. 


440  SET-OFF — COUNTERCLAIM.  [CHAP. 

may  reasonably  be  said  that  the  parties  must  have  foreseen  that  such 
a  cause  of  action  as  the  defendant  sets  up  might  grow  out  of  the 
transaction. 

The  cases  deciding  the  question  as  to  what  may  be  pleaded  as  a  coun- 
terclaim, are  cited  in  the  foot-note." 

In  the  case  of  Douthitt  v.  Smith,  69  Ind.  463,  it  is  held  that  a 
counterclaim,  iii  its  essential  qualities,  stands  upon  the  same  footing  as 
a  cross-bill  in  chancery,  and  must  not  introduce  into  the  cause  any 
matter  foreign  to  the  subject-matter  of  the  complaint. 

It  is  not  necessary  that  the  pleading  should  show  by  direct  averment 
that  the  cause  of  action  arises  out  of  or  is  connected  with  the  plaint- 
iff's cause  of  action,0  but  this  must  appear,  either  by  some  proper  al- 
legation, or  by  the  facts  pleaded,  as  it  is  absolutely  essential  to  the 
sufficiency  of  the  counterclaim.^ 

668.  Must  be  in  favor  of  the  defendant   pleading   it. — A 
counterclaim,  as  I  have  shown,  is  a  cause  of  action,  and  to  entitle  a 
defendant  to  plead  it  as  such  the  cause  of  action  must  be  in  his  favor.*1 
He  must  be  the  party  who  might  maintain  an  action  in  his  own  name 
as  plaintiff  in  an  independent  action  brought  by  him. 

669.  Surety  can  not  plead  counterclaim  in  favor  of  prin- 
cipal.— The  statutory  provision  authorizing  a  surety  to  plead  matter 

(n)  Conner  v.  Winston,  7  Ind.  523 ;  240;  McMahan  v.  Spinning,  51  In*d. 
Poug  v.  La  Due,  7  Ind.  675;  Judah  v.  187;  Norris  v.  Tharp,  65  Ind.  47; 
The  Trustees  of  the  Vincennes  Uni-  Compton  v.  Jones,  65  Ind.  117;  The 
versity,  10  Ind.  50;  Newkirk  v.  Neild,  Howe  Machine  Co.  v.  Keber,  06  Ind. 
19  Ind.  194;  Shelley  v.  Yanarsdoll,  23  498;  Schaffer  v.  Schaffer,  68  Ind.  374; 
Ind.  543;  Lovejoy  v.  Robinson,  8  Ind.  Douthitt  v.  Smith,  Adm'r,  69  Ind.  463; 
399;  Woodruff*.  Garner,  27  Ind.  4;  Cole  v.  Wright,  70  Ind.  180;  Blakely 
Slayback  v.  Jones,  9  Ind.  470;  Still-  v.  ttoruff,  71  Ind.  93;  Cooper  v.  Jack- 
well  v.  Chappel,  30  Ind.  72;  Vail  v.  son,  71  Ind. 244;  Thompson  v.  Toohey, 
Jones,  31  Ind.  467;  Dice  v.  Morris,  32  71  Ind.  296;  Love  v.  Oldham,  22  Ind. 
Ind.  283;  Grimes  v.  Duzan,  32  Ind.  51;  Wilson  v.  Carpenter,  62  Ind.  495; 
361;  Hoffa  v.  Hoffman,  33  Ind.  172;  Tabor  v.  Mackkee,  58  Ind.  290;  McCoy 
Campbell  v.  Routt,  42  .Ind.  410;  Block  v.  Wilson,  Ex'r,  58  Ind.  447;  Hess  v. 
v.  Ebner,  54  Ind.  5J4;  Teague  v.  Young,  59  Ind.  379;  Egolf  v.  Bryant, 
Fowler,  56  Ind.  569;  Gilpin  v.  Wil-  63  Ind.  365;  Harness  r.  Harness,  63 
son,  53  Ind.  443;  Morrison  7?.  Kramer,  Ind.  1  ;  Sidiner  v.  Davis,  09  Ind.  336; 
58  Ind.  38;  Conaway  v.  Carpenter,  58  Schee  v.  McQuilken,  59  Ind.  269;  Gor- 
Ind.  477  ;  The  Jeffersonvllle,  Madison  don  v.  George,  12  Ind.  408;  Stundley  v. 
and  Indianapolis  K.  R.  Co.  v.  Oyler,  60  N.  W.  Mut.  Ins.  Co.,  95  Ind.  254. 
Ind.  383;  Bran  ham  v.  Johnson,  62  (o)  Gilpin  r.  Wilson,  5=1  Ind.  443. 
Ind.  259;  Money  v.  Musser,  34  Ind.  (p)  Thompson  v.  Toohey,  71  Ind. 
373;  Hinkle  v.  Mongerum,  50  Ind.  '2W-  Standley  v.  N.  W.  Mut.  L.  Ins. 

Co.,  95  Ind.  254. 

(q)  Pom.  Rem.,  g  740. 


XVI.]  SET-OFF — COUNTERCLAIM.  441 

in  favor  of  the  principal  as  a  set-off  in  his  own  defense,  does  not  ex- 
tend to  counterclaims. r  In  that  class  of  cases  the  matter  pleaded  can 
only  go  in  defense  of  the  action.  In  the  earlier  cases,  where  counter- 
claim was  treated  as  matter  of  defense,  there  could  be  no  valid  reason 
why  the  surety  should  not  have  the  right,  except  that  there  was  no 
express  statutory  provision  authorizing  it,  but  as  counterclaim  is  now 
treated  entirely  as  a  cause  of  action,  and  the  pleading  as  a  complaint, 
no  such  right  can  exist. 

It  has  been  held  by  the  supreme  court  that  a  cause  of  action  in  favor 
of  the  principal  may  be  pleaded  by  all  of  the  defendants.8  To  this 
extent  the  rule  is  just,  but  it  can  not  be  extended  so  far  as  to  permit 
a  defendant  who  is  surety  to  plead  in  his  own  behalf  that  a  cause  of  ac- 
tion exists  in  favor  of  his  principal. 

As  I  have  said,  the  second  clause  of  the  statutory  definition  of  a 
counterclaim  seems  to  contemplate  the  pleading  of  matter  of  defense 
that  could  not  amount  to  a  cause  of  action.  The  right  of  the  surety 
to  plead,  under  this  clause  of  the  statute,  matter  in  favor  of  the  prin- 
cipal that  would  tend  to  reduce  the  plaintiff's  claim  or  demand  for 
damages,  might  be  within  the  spirit  of  the  statute,  but  the  right  to 
plead  a  counterclaim  by  the  surety  is  not  given  by  statute,  and  can 
not  exist  under  the  present  construction  given  the  section  defining  a 
counterclaim. 

670.  Part  of  defendants  may  plead  counterclaim. — It  is  not 
necessary,  where  defendants  are  sued  jointly,  that  the  counterclaim 
should  exist  in  their  favor  jointly,  or  that  all  should  have  a  right  of 
action.  A  cause  of  action  existing  in  favor  of  one  of  the  defendants 
may  be  pleaded  by  him  in  his  o\\u  behalf,  whether  it  does  or  does  not 
go  to  the  benefit  of  the  other  defendants,  where  the  cause  of  action 
against  the  defendants  would  authorize  a  several  judgment  against 
them,  and  the  cause  of  action  in  favor  of  the  defendant  pleading  it  is 
several.' 

It  is  well  settled  by  authority  that,  in  case  of  a  set-off,  one  of  several 
defendants,  jointly  sued,  can  not  plead  a  defense  in  his  own  favor.u 

This  grows  out  of  the  doctrine  of  mutuality  that  has  always  been 
strictly  adhered  to  in  this  class  of  defenses.  Whether  this  rule  applies 
to  counterclaims  in  this  state  is  not  so  well  settled.  In  Mr.  Pomeroy's 
work  on  Remedies  the  rule  is  laid  down  very  broadly  against  the  right 
of  one  defendant  to  plead  a  counterclaim  when  he  is  jointly  liable 

(r)  TC.  S.  1881,  \  349 ;  ante,  §  639.  (t)  Pom.  Rem.,  f§  755,  758,  and  notes, 

(s)  Slaybadvt>  Jones,  9  Ind.  470.  (u)  Ante,  §  646. 


SET-OFF — COUNTERCL A IM .  [c II A  P. 

with  other  defendants,  and  to  support  the  text  a  number  of  Indiana 
cases  are  cited. v 

It  must  be  remembered  that  in  other  states  counterclaim  includes 
set-off,  and  all  of  the  Indiana  cases  cited  by  the  author  are  cases  where 
the  defense  pleaded  was  not  counterclaim  but  set-off.  This  rule  can 
not  be  maintained  in  this  state. 

Where  one  of  the  defendants  sued  jointly  has  a  cause  of  action  in 
his  favor,  arising  out  of  the  plaintiff's  cause  of  action,  there  is  no  valid 
reason  why  he  should  not  be  permitted  to  set  up  his  counterclaim.'7 
But  the  cause  of  action  must  be  several,  as  the  plaintiff's  must  be  the 
same  in  a  counterclaim  as  would  be  necessary  if  an  independent  ac- 
tion were  brought  and  the  same  rules  as  to  the  joinder  of  causes 
apply. x 

671.  Must  be  against  the  plaintiff. — In  counterclaim  the  cause 
of  action  must  be  against  the  plaintiff.  In  this  it  differs  materially 
from  set-off,  which  may  be  pleaded  against  the  assignor  of  the 
plaintiff.  The  demand  can  not  be  pleaded  as  a  counterclaim,  under  the 
construction  placed  upon  the  statute  by  the  later  decided  cases  being 
against  the  assignor,  as  it  is  in  no  sense  a  defense  but  a  cause  of  action 
upon  which  the  defendant  might  recover  a  judgment  against  the 
former  holder. y 

In  the  authority  cited  the  author  says :  "  The  cause  of  action  must 
exist  against  the  plaintiff  in  the  suit,  so  that  a  judgment  for  the  relief 
demanded  can  be  rendered  against  him.  This  feature  in  the  counter- 
claim is  evident  upon  the  most  cursory  reading  of  the  statutory  pro- 
vision, and  yet  the  books  are  full  of  cases  in  which  matters  have  been 
set  up  as  counterclaims  that  showed  no  cause  of  action  whatever  against 
the  plaintiff,  but  one  (if  at  all)  existing  against  some  other  person  not 
a  party  to  the  suit.  This  error  is  most  likely  to  arise  in  actions  brought 
by  an  assignee  of  a  demand  where  the  defendant  has  a  claim  which 
would  be  valid  against  the  assignor.  Such  claim  may,  under  some  cir- 
cumstances, constitute  a  perfect  defense  to  the  suit,  and  it  may  be  a 
set-off  according  to  the  provisions  of  statutes  prior  to  the  code ;  but  it 
can  not  be  a  counterclaim  for  the  simple  but  most  cogent  reason  that  it 
does  not  entitle  the  defendant  to  any  possible  recovery  against  the 
plaintiff."2 

We  have,  however,  a  statutory  provision  that  authorizes  a  defendant 

(v)  Pom.  Kern.,  \  758,  and  note.  (x)  Woodruff  v.  Garner,  27  Ind.  4. 

(w)  Dice  v.   Morris,    32   Ind.   283;  (y)   Pom.  Rem.,  §  741. 

Norris  v.  Tharp,  65  Ind.  47;  McCoy  (z)  Bliss'  Code  PI.,  §367. 
».  Wilson,  Ex'r,  58  Ind.  447. 


XVI.]  SET-OFF — COUNTKKCLAIM.  443 

to  «nake  whatever  defense  or  *et-off  he  had  against  the  original  payee 
before  notice  of  the  assignment ;  but  this  statute  does  not  go  beyond  a 
defense  and  set-off  so  it  can  not  affect  the  right  to  plead  a  counter- 
claim.-'1 

One  defendant  is  permitted,  under  our  practice,  to  file  a  cross-com- 
plaint  against  another  defendant  in  some  cases  where  no  cause  of  action 
is  shown  against  the  plaintiff,  e.  g.,  in  the  case  of  one  defendant  plead- 
ing suretyship  as  against  another,  but  this  is  not  a  counterclaim  in  any 
sense  of  the  term,  except  so  far  as  it  is  asked  that  the  plaintiff's  judg- 
ment be  so  rendered  as  to  require  execution  to  be  first  levied  upon  the 
property  of  the  principal  defendant.  The  defendant  who  pleads  a 
counterclaim  may  undoubtedly  make  other  parties  defendant  to  his 
complaint  besides  the  plaintiff  in  a  proper  case.  This  may  be  other 
defendants  in  the  case,  or  new  parties  may  be  brought  in  for  that  pur- 
pose, but  in  every  case,  in  order  to  constitute  it  a  counterclaim,  the 
cause  of  action  must  be  against  the  plaintiff  alone,  or  in  connection 
with  other  parties.  Defendants  can  not,  under  the  name  of  a  counter- 
claim, litigate  a  matter  between  themselves,  although  it  may  arise  out 
of  the  plaintiff's  cause  of  action. 

672.  Must  impair,  affect,  or  qualify  the  plaintiff's  right  to 
relief. — The  term  counterclaim  seems  to  imply  that  the  matter  pleaded 
must  affect,  in  some  way,  the  relief  the  plaintiff  would  otherwise  be 
entitled  to  receive.  The  definition  of  a  counterclaim,  as  given  in  the 
statute,  as  I  have  already  said,  and  as  the  supreme  court  has  held,  em- 
braces two  classes,  the  last  of  which  it  is  expressly  provided  must  tend 
to  reduce  the  plaintiff's  claim  or  demand  for  damages.  It  may  be  a 
matter  of  some  question  whether  under  the  first  clause  of  the  defini- 
tion it  is  necessary  that  the  counterclaim  must  be  one  that  affects  the 
plaintiff's  right  of  recovery. 

In  New  York  it  is  expressly  provided  in  the  present  code  that  the 
counterclaim  "  must  tend  in  some  way  to  diminish  or  defeat  the  plaint- 
iff's recovery."1* 

This  provision  of  the  code  did  not  change  the  rule  as  it  existed  un- 
der the  old  code,  as  the  court  of  appeals  had  held,  without  this  direct 
provision,  that  the  counterclaim  must  affect  the  plaintiffs  recovery. 

The  definition  of  a  counterclaim  in  the  New  York  code,  and  almost 
all  of  the  other  states,  is  entirely  different  from  ours.  It  is  thus  de- 
fined in  New  York :  "  The  counterclaim  specified  in  the  last  section 
must  tend  in  some  way  to  diminish  or  defeat  the  plaintiff's  recovery, 
and  must  be  one  of  the  following  causes  of  action  against  the  plaint' 

(a)  R.  S  1881,  ??  267,  550?,.  (M  Throop's  N.  Y.  Code,  ?  501. 


444  SET-OFF — COUNTERCLAIM.  [CHAP. 

iff,  or  in  a  proper  case  against  the  person  whom  he  represents  ftnd 
in  favor  of  the  defendant,  or  of  one  or  more  defendants,  between 
whom  and  the  plaintiff  a  separate  judgment  may  be  had  in  the  ac- 
tion : 

"  1.  A  cause  of  action  arising  out  of  a  contract  or  transaction  set  forth 
in  the  complaint  as  the  foundation  of  the  plaintiff's  claim  or  connected 
with  the  subject  of  the  action. 

"2.  In  an  action  on  contract  any  other  cause  of  action  on  contract 
existing  at  the  commencement  of  the  action." c 

The  second  specification  of  causes  of  action  in  which  a  counterclaim 
may  be  pleaded,  it  will  be  noticed,  is  in  effect  the  same  as  our  set-off. 
The  definition  of  a  counterclaim  is  much  more  definite  and  specific 
than  in  our  code,  and  is  undoubtedly  more  restricted. 

In  other  states  where  it  is  not  provided  in  terms  that  the  counter- 
claim must  be  such  as  to  affect  or  reduce  the  plaintiff's  recovery,  it  is 
held  to  be  the  effect  of  the  codes. d 

While  there  is  no  direct  provision  in  our  code  thus  limiting  the 
rights  of  the  defendant,  it  is  difficult  to  conceive  of  a  case  where  a 
cause  of  action  in,  favor  of  the  defendant,  and  against  the  plaintiff, 
could  arise  out  of  or  be  connected  with  the  plaintiff's  cause  of  action, 
without  in  some  way  affecting  his  right  to  recover.  The  authorities 
clearly  establish  the  rule  that  the  right  to  plead  a  counterclaim  should 
be  thus  limited.6 

673.  Cause  of  action  in  plaintiff  need  not  be  admitted. — 
Some  of  the  authorities  hold  that  where  the  defendant  pleads  a  coun- 
terclaim it  must  amount  to  an  admission  that  the  plaintiff  has  a  cause 
of  action,  and  that  he  can  not,  at  the  same  time,  attempt  to  show  that 
the  plaintiff  has  no  cause  of  action  and  plead  a  counterclaim/ 

No  such  construction  can  properly  be  placed  upon  the  code  of  this 
state.  The  defendant  is  expressly  authorized  to  plead  "  as  many 
grounds  of  defense,  counterclaim,  and  set-off,  whether  legal  or  equitable,  as 
he  shall  have."* 

And,  as  I  have  already  shown,  his  defenses  may  be  entirely  incon- 
sistent.11 

There  can  be  no  valid  reason  why,  under  the  broad  language  of  the 
statute,  the  defendant  may  not  allege  and  prove,  by  way  of  defense, 

(c)  Throop's  N.  T.  Code,  §  501.  (f )  Pom.  Rem.,  §  739,  and  authorities 

(d)  Bliss'  Code  PI.,  $  386-389.  cited. 

(e)  Pom.  Rem.,  g§  744,  745,  746,  and  (g)  R.  S.  1881,  §  343,  sub.  3. 
authorities   cited;    Standley  v.  N.  VV.  (h)  Ante,  §  591. 

Mat.  L.  Ins.  Co  ,  95  Ind.  254. 


XVI.]  SET-OFF — COUNTERCLAIM.  445 

that  the  plaintiff  has  no  cause  of  action,  and,  by  way  of  counterclaim, 
establish  a  right  of  action  in  himself  and  recover. 

The  decided  cases  the  other  way,  proceed  upon  the  theory  that  unless 
the  plaintiff  has  a  cause  of  action  it  can  not  be  said  that  there  is  any 
cause  of  action  out  of  which  a  counterclaim  could  arise ;  but  it  is 
enough  if,  by  his  complaint,  the  plaintiff  alleges  a  cause  of  action,  and 
out  of  the  matter  alleged  the  defendant  pleads  such  facts  as  would 
show  a  counterclaim,  admitting  the  facts  to  be  as  stated  in  the  plaint- 
iff's complaint.' 

674.  Equitable  cause  of  action  may  be  pleaded. — The  stat- 
ute expressly  authorizes  the  defendant  to  set  up  as  many  grounds  of 
defense,  counterclaim,  and  set-off,  ichether  legal  or  equitable,  as  he  shall 
have.     The  question  whether  an  equitable  counterclaim  can  be  pleaded 
to  a  legal  cause  of  action,  in  favor  of  the  plaintiff,  has  been  the  sub- 
ject of  considerable  controversy;    but  it  is  difficult  to  see  how  any 
doubt  could  arise  under  our  code.     So  far  as  the  questions  of  pleading 
and  practice  are  concerned  there  is  no  proceeding  in  equity  or  action 
at  law.j 

The  practice  being  the  same,  whether  the  cause  of  action  is  legal  or 
equitable,  no  reason  could  exist,  if  the  statute  did  not  authorize  it  in 
express  terms,  for  denying  the  defendant  the  right  to  plead  an  equita- 
ble counterclaim  to  what  would,  under  the  old  practice,  have  been  an 
action  at  law.k 

675.  Counterclaim  must  exist  when  the  action  is  com- 
menced.— It  is  not  sufficient  for  the  defendant  that  he  has  a  counter- 
claim at  the  time  he  pleads.     His  right  to  plead  relates  to  the  time  the 
plaintiffs  action  is  commenced,  and  his  counterclaim,  to  be  available, 
must  exist  at  that  time.1 

676.  Tort  can  not  be  pleaded  as  counterclaim. — In  most  of 
the  states  the  right  to  plead  a  counterclaim  is  confined  to  .matters 
arising  out  of  the  "  contract  or  transaction"  set  forth  in  the  complaint. 
In  those  states  it  is  generally  held  that,  by  the  use  of  the  word  tram- 
action,  it  was  intended  to  authorize  counterclaims  in  other  than  actions 
on  contract,  but  the  authorities  are  not  uniform."1 

These  authorities  can  not  be  relied  upon  in  this  state,  because  of  tin- 
difference  in  the  language  of  the  codes.  Our  code  contains  no  liniita- 

(i)  Pom.  Kern.,  §  7-39.  (1)  Newkirk  v.  Neild,  19  Ind.  104. 

(j)   Ante,  §  176  et  seq.  <m)  Xenin   Branch  Bank  v.  Lee,  7 

(k)  Vail  v.  Jones,  31  Ind.  467;  Bliss'  Abb.   Pr.  389;    Pom.  Rem.,  §   784  <-t 

Cede  IM.,  §  383;  Pom.  Rem.,  §  764.  seq.,  and  authorities  cited. 


446  SET-OFF — COUNTERCLAIM.  [CHAP. 

tion  whatever  upon  the  right  of  the  defendant  to  plead  a  counterclaim, 
so  far  as  the  nature  of  the  cause  of  action  of  either  of  the  parties  is 
concerned.  Notwithstanding  this,  the  authorities  show  an  inclination 
on  the  part  of  the  supreme  court  to  confine  the  right  to  actions  on 
contract. 

In  the  earlier  cases  the  court  evaded  any  direct  decision,  as  far  as 
possible,  upon  the  question  whether  a  tort  could  be  the  subject  of  a 
counterclaim  under  any  circumstances."  But  it  was  held  that,  as  a 
general  rule,  contracts  and  trespasses  could  not  be  liquidated  by  coun- 
terclaim,0 and  that  trespasses  could  not  be  made  to  compensate  each 
other  by  any  form  of  pleading. p 

In  the  case  of  Shelley  v.  Vanarsdoll  it  was  intimated  that  no  case 
could  arise  in  any  action  unconnected  with  contract  where  a  counter- 
claim could  be  pleaded.  It  is  held,  also,  that  a  counterclaim  predicated 
upon  a  contract  can  not  be  pleaded  to  an  action  sounding  in  tort.q 
This  is  placed  upon  the  ground  that  a  contract  is  a  matter  which  can 
not  arise  out  of  tort,  or  be  so  connected  with  it  as  to  be  pleaded  as  a 
counterclaim  to  an  action  sounding  in  tort. 

The  right  to  set  up,  by  way  of  counterclaim,  a  breach  of  the  con- 
tract or  fraud  in  connection  therewith,  must  be  recognized  if,  as  the 
supreme  court  holds,  counterclaim  includes  recoupment.^)  About  the 
right  to  plead  such  matter  as  would  have  been  proper  by  way  of  re- 
coupment, prior  to  the  adoption  of  the  code,  as  a  counterclaim,  there 
can  be  no  doubt,  as  the  authorities  are  clearly  to  that  effect  in  all  of 
the  states  having  a  code  similar  to  ours.  So  that  if  the  matter  pleaded 
would  formerly  have  been  proper  in  recoupment,  it  may  be  set  up  as  a 
counterclaim.  As  to  what  has  been  held  to  be  proper  matter  of  re- 
coupment, see  the  authorities  cited  in  the  foot-note/ 

In  a  great  many  of  the  cases  cited  the  term  recoupment  is  used  by 
the  supreme  court  when  the  matter  set  up  amounted  to  a  counterclaim. 
Thus  characterizing  a  counterclaim  as  recoupment,  since  the  enactment 

(n)  Conner  v.  Winton,  7  Ind.  523.  v.  Beeds,  20  Ind.  37;  Stilwell  v.  Chap- 

(o)  Slayback  v.  Jones,  9  Ind.  470;  pell.  30  Ind.  72;  Wiley  v.  Starbuck,  44 

Lovejoy  v.  Robinson,  8  Ind.  399.  Ind.  298;  Hollcraft  v.  Mellott,  57  Ind. 

(p)  Lovejoy  v.  Robinson,  8  Ind.  399;  539;  Snyder  v.  Braden,  58  Ind.  143; 

Shelley  v.  Vanarsdoll,  23  Ind.  543.  See  Reynolds  v.  Roundabush,  59  Ind.  483  ; 

also   Terre    Haute,    etc.,  R.  R.  Co.  v.  Kirabrough   v.    Lukins,   70   Ind.  373; 

Pierce,  95  Ind.  496.  Kenedy  v.  Richardson,  70  Ind.  524; 

fq)  Hess  v.  Young,  59  Ind.  379.  Clark  v.  Wild  ridge.  5  Ind.  176;  Hous- 

(r)  McKinney  v.  Springer,  3  Ind.  ton  v.  Youne,  7  Ind.  200;  Estep  v. 

59;  Epperly  «.  Bailey,  3  Ind.  72;  Man-  Morton,  6  Ind.  489. 

ville  v.  McCoy,  3  Ind.  148;   Heaston  v.         (1)  See  on  this  point  the  Inter  cases 

Colgrove,  3  Ind.  265;   Baker  v.  Rails-  of    Terre    Hnute    etc.,    R.    R.   Co.  v. 

back,  4  Ind.  533;  Rankin  r.  Harper,  4  Pierce,  95  Ind. 496;  Standley  v.  North- 

Ind.  585;  Miles  v.  Elkin,  10  Ind.  329;  western,  etc.,  Mut.  L.  Ins.  Co.,  95  Ind, 

Nill  v.  Compare!,  15  Ind.  243;  Burton  254. 


XVI.]  SET-OFF— COUNTERCLAIM.  447 

of  the  code,  has  created  some  confusion  in  the  decided  cases  that  might 
be  avoided  by  calling  a  pleading  by  its  proper  name.  In  those  cases 
relating  to  the  recoupment  of  interest  the  statute  expressly  provides 
for  a  recoupment  of  illegal  interest,  and,  therefore,  matter  pleaded  un- 
der the  statute  is  a  defense  by  way  of  recoupment,  and  not  a  counter- 
claim.8 

677.  Pleading   can  not  perform   double  office  of  answer 
and  counterclaim. — It  is  a  very  common  thing  to  see  a  pleading 
termed  an  "  answer  and  cross-complaint."    This  is  a  plain  contradiction 
in  terms.     The  same  pleading  can  not,  at  the  same  time,  be  a  counter- 
claim, or  cause  of  action,  and  a  defense. 

The  supreme  court  has  held,  in  a  number  of  cases,  that  a  pleading 
can  not  perform  the  double  office  of  counterclaim  and  answer.' 

The  pleader  should  determine  whether  the  facts  upon  which  he  relies 
will  amount  to  an  answer  or  a  counterclaim,  and  plead  them  either  as 
one  or  the  other,  and  not  attempt  to  avoid  the  effect  of  a  mistake  in 
that  respect  by  a  course  that  may  mislead  the  plaintiff  to  his  disadvan- 
tage." 

678.  Will  be  construed  to  be  either  answer  or  counter- 
claim, according  to  the  facts  stated. — In  most  of  the  states  it  is 
held  that  the  pleading  must  show,  upon  its  face,  whether  it  is  pleaded 
as  an  answerer  a  counterclaim,  and  some  of  the  authorities  hold  that  it 
must  be  expressly  stated  whether  it  is  pleaded  as  the  one  or  the 
other. v    Our  supreme  court  has  held  otherwise.     The  rule  in   this 
state  is  that   the   pleading   will   be   held  good  on   demurrer,   if  it 
states  either  a  defense  or  a  counterclaim,  and  it  will  be  held  to  be 
either  the  one  or  the  other,  according  to  the  facts  alleged,  without 
reference  to  the  question  whether  it  has  been  pleaded  as  a  defense  or 
a  counterclaim  or  both  or  neither.     Its  sufficiency  and  the  kind  of 
pleading  it  is  must  be  determined  from  the  facts  stated. w 

This  kind  of  pleading  should  not  be  encouraged.     The  plaintiff 

(s)  R.  S.  1881,  §  5201.  son  v.  Toohey,  71  Ind.  296;  Stockton 

(t)  Campbell  v.  Routt,  42  Ind.  410;  .v.  Stockton,  73  Ind.  510. 

Schee  v.  McQuilken,  59  Ind.  269  ;  Kim-  (u)  Post,  §  679. 

ble  v.  Christie,  55  Ind.  140;   Hadley  v.  (v)  Pom.  Rem.,  §  748,  and  authori- 

Prather,  64  Ind.  137;  Wilson  v.  Car-  ties  cited;   Bliss'  Code  PI.,  §  367,  and 

penter,  62  Ind.  495;  Toledo  Agricul-  note. 

tural   Works  v.  Work,    70   Ind.  253;  (w)  Gilpin  r.  Wilson,  63  Ind.  443; 

McArdle  v.   Bariclow,   68   Ind.    356;  Wilson   v.    Carpenter,    62    Ind.   495; 

Blakely  v.  Boruff,  71  Ind.  93;  Thomp-  Harness  v.  Harness,  63  Ind.  1;  Sidener 

v.  Davis,  69  Ind.  330. 


448  SET-OFF — COUNTERCLAIM.  [CHAP. 

should  be  informed  by  the  pleading  whether  the  defendant  intends, 
upon  the  trial,  to  rely  upon  the  facts  stated  as  a  defense  merely  or  as 
a  cause  of  action.  Whether  the  facts  amount  to  one  or  the  other  is 
often  a  question  not  easily  determined,  and  the  party  pleading  the  facts 
should  be  required  to  determine  this  question,  as  in  case  of  doubt  he 
has  the  right  to  plead  the  facts  both  as  an  answer  and  a  counter- 
claim. 

679.  Demurrer  to  pleading  as  an  answer  does  not  reach 
defects  therein  as  a  counterclaim. — The  plaintiff  in  demurring 
to  a  pleading  on  the  part  of  the  defendant  must  necessarily  determine 
whether  the  pleading  is  an  answer  or  a  counterclaim.     To  demur  on 
the  ground  that  a  pleading  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  will  not  raise  the  question  whether  it  states  facts  suf- 
ficient to  constitute  a  defense,  nor  will  a  demurrer  on  the  ground  that 
a  pleading  does  not  state  facts  sufficient  to  constitute  a  defense  raise 
any  question  as  to  its  sufficiency  as  a  complaint  by  way  of  counter- 
claim.x 

680.  Must  plead  cause  of  action   as   a  counterclaim,  or 
pay  costs  of  subsequent  action  thereon. — The  defendant  is  not 
bound  to  plead  a  counterclaim,  but  may  bring  a  subsequent  action 
thereon.     The  statute  provides,  however,  as  a  penalty  for  failing  to  set 
up  his  counterclaim,  that  if  he  brings  an  action  thereon  against  the 
plaintiff  he  must  do  so  at  his  own  costs.* 

But  this  can  only  be  done  where  in  the  first  action  the  defendant 
was  personally  served  with  process. 

The  facts  showing  the  former  adjudication,  that  he  was  personally 
served  with  process  therein,  and  might,  in  that  cause,  have  properly 
pleaded  his  present  cause  of  action  as  a  counterclaim,  must  be  specially 
pleaded  by  way  of  answer,  and  can  not  be  presented  by  motion  after 
verdict.2 

681.  Dismissal  of  original  complaint  does  not  affect  coun- 
terclaim.— Although  a  counterclaim  must  arise  out  of  or  be  connectei 
with  the  plaintiff's  cause  of  action,  after  the  defendant   pleads  his 
counterclaim  he  becomes  himself  a  plaintiff,  and  a  dismissal  of  the 
original  complaint  does  not  carry  with  it  the  counterclaim,  but  the 
same  may  be  tried  as  an  original  cause  of  action.'1 

(x)  Stockton   v.   Stockton,    78   Ind.         (z)  Ante,  %  605;  Norris  v.  Amos,  13 

510.  Ind.  365 ;  Palley  v.  Wood,  30  Ind.  407. 

(y)  E.  S.  1881,  §  351.  (a)  Tabor  v.  Mackkee,  58  Ind.  290; 

Egolf  v.  Bryant,  63  Ind.  365. 


XVI.]  SET-OFF— COUNTERCLAIM.  449 

682.  Cross-complaint  unknown  to  the  code. — In  many  of 
the  decided  cases  in  Indiana  counterclaim  and  matter  that  may  be 
pleaded  by  way  of  cross-complaint  are  treated  as  identical.  It  has 
been  held,  also,  that  counterclaim  includes  the  cross-bill  in  equity 
"  against  the  plaintiff."*  As  against  the  plaintiff  the  same  matter  that 
might  have  been  set  up  by  way  of  cross-bill  in  equity,  subject  to  the 
limitations  contained  in  the  statute,  may  be  pleaded  as  a  counterclaim ; 
but  the  cross-bill  in  equity  might  be  resorted  to  as  between  the  defendants 
in  the  proceeding.0  In  equity  the  cross-bill  was  regarded  as  being 
auxiliary  to  and  dependent  upon  the  original  suit.d  So  far  as  the 
cross-bill  in  equity  might  be  resorted  to  as  between  the  defendants,  it 
is  clearly  not  embraced  within  the  counterclaim  provided  for  bv  the 
code. 

In  this  state  the  right  to  plead  matter  by  way  of  cross-complaint, 
even  as  between  defendants,  is  clearly  recognized.6 

These  cases  do  not  proceed  upon  the  theory  that  the  statute  author- 
izes such  a  pleading  as  a  counterclaim,  but  hold  that  as  the  statute 
confers  the  power  to  determine  the  rights  of  the  parties  on  each  side 
of  the  case,  that  this  may  be  done  under  the  rules  of  practice  in 
chancery.  In  the  case  of  Fletcher  v.  Holmes,  the  court  say  :  "The 
statute  expressly  confers  power  to  determine  the  rights  of  the  parties 
on  each  side  of  a  .ease,  as  between  themselves,  when  the  justice  of  the 
case  requires  it.  The  mode  of  procedure,  however,  is  not  pointed  out 
by  the  statute,  and  as  the  authority  given  is  one  previously  possessed 
only  by  courts  of  chancery,  we  suppose  the  rules  of  pleading  and  prac- 
tice of  those  courts,  modified  by  the  spirit  of  the  code,  must  be 
resorted  to. 

"  In  those  courts,  when  a  defendant  sought  relief  against  a  co-defend- 
ant, as  to  matters  not  apparent  upon  the  face  of  the  original  bill,  he 
must  file  his  cross-bill,  alleging  therein  the  matters  upon  which  he  re- 
lied for  relief,  making  defendants  thereto  of  such  co-defendants  and 
others  as  was  proper,  and  process  was  necessary  to  bring  them  in. 
The  filing  of  the  cross-bill  was  regarded  in  some  sense  as  the  com- 
mencement of  a  new  suit.  It  must  be  quite  obvious  that  the  applica- 
tion of  the  rule  of  chancery  practice,  to  a  case  like  the  one  under  con- 

(b)  Woodruff  v.  Garner,  27  Ind.  4;         (d)  Ibid.,  §  399. 

Douthitt  v.  Smith,  Adm'r,  69  Ind.  463 ;  (e)   Dice    v.   Morris,    32    Ind.   283; 

Standley  v.  N.  W.  Mut.  L.  Ins.  Co.,  95  Fletcher  v.  Holmes,  25  Ind.  458  ;  Mer- 

Ind.  254.  edith  v.  Lackey,  16  Ind.  1  ;  Ewing  v. 

(c)  Story's  Eq.  PL,  9th  ed.,  j}§  391o,  Patterson,   35   Ind.  326;    Manning  v. 
392.  Gasherie,  27  Ind.  399. 

29 


450  SET-OFF — COUNTERCLAIM.  [CHAP. 

sideration,  is  well  adapted  to  prevent  abuses,  and  is  indeed  absolutely 
necessary  to  the  purposes  of  justice." f 

This  decision  it  will  be  noticed  is  based  in  part  upon  sec.-  802  of  the 
code  of  1852,  which  has  been  repealed.  Whether  the  practice  in 
chancery  can  be  resorted  to  under  the  present  code  or  not,  is  a  question 
of  some  doubt.  It  is  believed  the  right  exists  under  the  provision  of 
the  statute  authorizing  the  court  to  adjust  the  rights  of  the  parties  on 
each  side  of  the  case.(l) 

While  the  defendants  are  thus  permitted  to  litigate  questions  grow- 
ing out  of  the  plaintiff's  cause  of  action,  as  between  themselves,  they 
can  not  be  permitted  to  do  so  to  the  prejudice  of  the  rights  of  the 
plaintiff,  nor  can  his  right  to  recover  judgment  be  delayed  by  such 
litigation.8 

As  I  have  said,  a  counterclaim  and  a  cross-complaint  are  essentially 
different,  and  much  confusion  would  be  avoided  by  calling  these  differ- 
ent pleadings  by  their  proper  names,  in  practice  and  in  the  decided 
cases. h 

(f)  Fletcher  v.  Holmes,  25  Ind.  458,         (g)  Manning  o.  Gasherie,  '27  Ind.399. 
465 ;    Pom.   Kern.,   §§    806,   807,   808 ;         (h)  Egolf  v.  Bryant,  63  Ind.  365. 
Bliss'  Code  PL,  §  390.  (I)  Swift  v.  Brumfield,  76  Ind.  472. 


xvn.]  REPLY.  451 


CHAPTER   XVII. 

REPLY.d) 

SECTION.  SECTION. 

683.  The  statute.  689.  Argumentative  reply. 

684.  The  general  denial.  690.  Must  avoid  the  whole  answer. 

NEW    MATTER.  STATUTE    OF   LIMITATIONS. 

685.  Must  support  the  complaint  and     691.  Exceptions   must  be  pleaded  by 

avoid  new  matter  in  the  answer.  way  of  reply. 

686.  Departure. 

687.  New  assignment.  SET-OFF. 

688.  New   matter   must    be   specially  692.  May  be  pleaded  to  a  set-off. 

pleaded.  693.  Effect  of  failure  to  reply. 

683.  The  statute. — "  When  any  paragraph  of  the  answer  contains 
new  matter,  the  plaintiff  may  reply  to  it  by  a  general  denial,  and  may, 
also,  in  separate  paragraphs,  reply  any  new  matter  which  supports  the 
complaint  and  avoids  the  new  matter  in  such  paragraph  of  the  answer. 
The  defendant  may  demur  to  any  paragraph  of  the  reply,  on  the 
ground  that  the  facts  stated  therein  are  not  sufficient  to  avoid  the  para- 
graph of  answer,  or  if  the  answer  be  a  set-off  or  counterclaim  any  part 
thereof.     The  paragraphs  of  the  reply,  like  the  answer,  shall  be  sever- . 
ally  numbered,  and  each  shall  plainly  refer  to  the  paragraph  of  the 
answer  to  which  it  is  addressed. 

"The  pleadings  to  a  counterclaim  shall  be  an  answer  by  the  defendant 
thereto,  and  a  reply  to  new  matter  in  the  answer,  with  the  right  to  de- 
mur to  any  of  them,  as  if  the  counterclaim  were  an  original  complaint.8" 

684.  The  general  denial. — What  has  been  said  with  reference  to 
the  general   denial  in  the  answer,  applies  equally  to  the  reply,  and 
nothing  need  be  added  to  what  was  said  in  that  connection.15 

NEW   MATTER. 

685.  Must  support  the  complaint  and  avoid  new  matter 
in  the  answer. — In  the  allegation  of  new  matter  in  the  reply,  two 
things  are  required :     1.  The  new  matter  must  support  the  complaint ; 

(a)  R.  S.  1881,  §  357.  (b)  Ante,  §  578  et  seq.;  Kimberling 

(1)  Forms  of  reply,  Vol.  3,  pp.  411-    v.  Hall,  10  Ind.  407. 
414.      • 


452  REPLY.  [CHAP. 

2.  It  must  avoid  the  ue\v  matter  alleged  in  the  paragraph  of  the  answer 
to  which  it  is  addressed. 

As  to  the  second  of  these,  the  reply  must  be  governed  by  the  same 
rules  that  apply  to  the  answer,  so  far  as  its  sufficiency  is  concerned. 

The  effect  of  a  violation  of  the  first  requirement  of  the  statute  will 
be  considered  in  the  following  section. 

686.  Departure. — The  rule  laid  down  in  the  statute,  that  the  reply 
must  support  the  complaint,  is  the  same  as  at  common  law.c 

A  violation  of  the  rule  was  termed  a  departure. 

Under  the  common-law  system  of  pleading,  this  defect  might  occur 
in  the  replication  and  other  subsequent  pleadings.  Under  the  code  it 
can  only  occur  in  the  reply. 

In  the  chapter  on  demurrer,  it  was  shown  that  a  departure  was 
cause  for  demurrer,  though  it  was  held  otherwise  in  some  of  the  earlier 
cases. d 

This  is  placed  upon  the  ground  that  a  departure  from  the  cause  of 
action  alleged  in  the  complaint  is  in  effect  to  confess  the  allegations 
in  the  answer.6 

As  to  what  will  amount  to  a  departure,  see  the  authorities  in  the 
foot-note. f 

The  present  code  provides  for  the  same  course  of  pleading,  where  a 
counterclaim  is  filed,  that  would  be  required  if  the  same  matter  were 
pleaded  as  an  independent  cause  of  action.  There  are  in  effect  two 
causes  pending  at  the  same  time,  in  which  there  may  be  a  complaint, 
answer,  and  reply,  and  the  pleadings  under  the  counterclaim  must  be 
tested  by  the  same  rules  as  under  the  original  action ;  therefore  a  re- 
ply to  the  plaintiff's  answer  to  the  counterclaim  must  support  the  alle- 
gations of  the  counterclaim,  or  it  will  be  bad  on  the  ground  of  depart- 
ure as  in  other  cases. 

687.  New  assignment. — What  was  known  as  a  new  assignment 
in  common-law  pleading  is  unknown  to  the  code.     A  new  assignment 
was  a  restatement  in  more  specific  terms  of  the  cause  of  action  alleged 
in  the  complaint.     This  became  necessary  in  some  instances,  as  in 
actions  for  trespass,  on  account  of  the  general  manner  of  charging  the 

(c)  Zehnor    v.    Beard,    8    Ind.   96;  The   State,  17  Ind.  506;    McAroy  v. 
Shank  v.  Fleming,  9  Ind.  189.  Wright,  25  Ind.  22  ;  New  r.  Wambach. 

(d)  Ante,  §512.  42  Ind.  456;   Bearrs  r.  Montgomery,  46 

(e)  McAroy  v. "Wright,  25  Ind.  22,28.  Ind.  544;  Shirts  r.  Irons,  47  Ind.  445; 

(f )  Wells  v.Teall,  5  Blkf.306;  Will  Kimberlin  v.  Carter.  49  Ind.  Ill ;  God- 
v,  Whitney,   15  Ind.  194;    Keilley  v.  man  v.  Meixsel,  53  Ind.  11;  Shank  v. 
Rucker,  Ex'r,  16  Ind.  303;  Burtch  v.  Fleming,  9  Ind.  189. 


xvn.]  REPLY.  453 

offense  in  the  declaration.  The  defendant  in  justifying  would  some- 
times justify  another  and  different  trespass  than  the  one  intended  to 
be  charged  in  the  complaint.  The  office  of  a  new  assignment  was  to 
restate  the  cause  of  action,  but  more  specifically,  thereby  fixing  the 
trespass  originally  intended  to  have  been  alleged.  There  should  be  no 
occasion  for  such  a  course  of  pleading  under  the  code.  If  the  com- 
plaint is  uncertain  as  to  the  particular  trespass  charged,  or  in  any  other 
respect,  the  proper  practice  is  to  move  to  make  the  complaint  more 
specific. 

688.  New  matter  must  be  specially  pleaded. — I  have  shown 
that  in  pleading  by  way  of  answer,  new  matter  must  be  specially 
pleaded.8 

This  rule  applies  equally  to  the  reply,  subject  to  the  statutory  re- 
quirement that  the  new  matter  pleaded  must  support  the  complain t.h 

The  reply  must  not  only  avoid  the  answer,  but  it  must,  in  addition, 
•  show  the  plaintiff's  right  to  recover.' 

The  paragraphs  of  the  reply  must  be  numbered,  and  each  para- 
graph must  clearly  show  to  which  paragraph  of  the  answer  it  is  ad- 
dressed. There  is  no  material  difference  in  the  manner  of  pleading 
new  matter  in  the  answer  and  reply,  and  their  sufficiency  may  be  tested 
in  the  same  way. 

689.  Argumentative  reply. — The  rule  that  a  pleading  should  be 
positive  is  elementary,  and  applies  to  pleadings  under  the  code.-1 

It  is  held,  however,  that  a  reply  in  argumentative  form  may  be  suf- 
ficient^ 

It  does  not  follow  that  such  a  mode  of  pleading  is  proper.  It  is, 
however,  only  a  defect  in  form,  that  will  not  be  reached  by  a  de- 
murrer.1 

690.  Must  avoid  the  whole  answer. — The  rule  that  an  answer 
must  be  good  as  to  the  whole  complaint,  where  it  professes  to  answer 
the  whole,  applies  equally  to  the  reply."1     It  was  held   otherwise  in 
some  of  the  earlier  cases,  but  the  rule  is  well  established. 

The  reply  may  be  addressed  to  a  part  of  the  answer,  and  if  it  avoids 
so  much  of  the  answer  as  it  professes  to  meet  it  will  be  sufficient. 

(g)  Ante,  §  586  et  seq.  (1)  Ante,  §  502. 

(h)  Kimberlins  v.  Hall,  10  Ind.  407.  (m)  Kernodle  v.  Caldwell,  Adm'r,46 

(i)   Wilson  v.  Madison,  etc.,   R.  R.  Ind.  153;    Towell  v.    Pence,   47  Ind. 

Co,  18  Ind.  226.  304;  Prenatt  v.  Runyon,  12  Ind.  174; 

( j)  Ante,  §  353.  Kinsey  v.  The  State,  71  Ind.  32. 

(k)  Meredith  v.  Lackey,  14  Ind.  529  ; 
Meredith  v.  Lackev,  16  Ind.  1. 


454  REPLY.  [CHAP. 

STATUTE   OF   LIMITATIONS. 

691.  Exceptions  must  be  pleaded  by  -way  of  reply. — I  have 
shown  that  in  Indiana  the  statute  of  limitations   must  be  specially 
pleaded  by  way  of  answer, n  except  in  actions  to  recover  real  estate.0 

If  the  plaintiff  is  within  any  of  the  exceptions  in  the  statute  this 
must  be  specially  pleaded  by  way  of  reply. p 

SET-OFF. 

692.  May  be  pleaded  to  a  set-off. — A  demand  due  the  plaint- 
iff, other  than  the  one  sued  on  by  \rim>  may  be  pleaded  as  a  set-off  to 
a  set-off  pleaded  by  the  defendant.*1    This  may  be  done  where  the  mat- 
ter might  have  been  included  in  the  complaint.1"     Where,  in  a  suit 
against  principal  and  surety,  a  set-off  is  pleaded  as  due  the  principal 
defendant,  the  plaintiff  may  reply  a  set-off  against  such  principal.9 

And  where  the  set-off  pleaded  is  of  an  amount  due  the  defendant 
from  a  former  holder  of  the  note,  the  plaintiff  may  set  up,  by  way  of  • 
reply,  an  indebtedness  from  the  defendant  to  such  former  holder.' 

693.  Effect  of  failure  to  reply. — When  an  affirmative  answer 
is  filed  there  should  be  a  rule  against  the  plaintiff  to  reply.     A  failure 
to  reply  admits  the  allegations  of  the  answer  to  be  true,  and  entitles 
the  defendant  to  judgment  thereon." 

But  the  defendant  must  move  for  the  reply  in  the  court  below,  and 
if  he  goes  to  trial  without  insisting  upon  a  reply  being  filed,  the  alle- 
gations of  his  answer  will  be  regarded  as  controverted  by  a  general  de- 
nial, and  the  same  proof  may  be  made  by  the  plaintiff  as  if  a  general 
denial  had  been  pleaded.7 

There  was  much  confusion  in  the  earlier  cases  as  to  the  effect  of  a 
failure  to  reply, w  but  the  question  is  now  firmly  settled  as  above 
stated. 

(n)  Ante,  \\  307,  367,  507.  Moffitt  v.  The  Medsker  Draining  Asso- 

(o)  Ante,  §  308.  ciation,  48  Ind.  107;  Waughv.  Waugh, 

(p)  Riser  v.   Snoddy,    7   Ind.   442;  47  Ind.  580;  Knowlton  v.  Murdock,  17 

Perkins  v.  Rogers,  35  Ind.  124.  Ind.  487;  Martindale  v.  Price,  14  Ind. 

(q)  Reilleyv.  Eucker,  16  Ind.  303;  115;    Henley  v.   Kern,  15   Ind.   391; 

Curran  v.  Curran,  Adm'r,  40  Ind.  473.  Davis  v.  Engler,   18  Ind.  312;  Suther- 

(r)  House  v.  McKinney,  54  Ind.  240.  land  v.  Venard,  32  Ind.  483;   Irvinson 

(s)  Turners.  Simpson,  12  Ind.  413.  v.  Van  Riper,  34  Ind.  148;  Ringle  v. 

(t)  Dodge  ».  Dunham,  41  Ind.  186.  Bicknell,  32  Ind.  369;  The  Harrison, 

(u)  Barker  v.  Hobbs,   6    Ind.   385;  etc.,  Turnpike  Co.  v.  Roberts,  33  Ind- 

McCarty  v.  Roberts,  8  Ind.  150.  246;   Busk.  Prac.  286. 
(v)  Tram  v.  Gridley,  36  Ind.  241;         (w)  Busk.  Prac.  91,  92. 


xvni.] 


VARIANCES  AND  AMENDMENTS. 


455 


CHAPTER   XVIII. 


VARIANCES  AND  AMENDMENTS. 


SECTION. 

694.  Statutory  provisions. 

695.  Changes  effected  by  the  statute. 

696.  Amendments,  how  made. 


SECTION. 

OX  WHAT    TKBMS    LEAVE    TO    AMEND 
GRANTED. 

712.  Costs. 


AMENDMENTS,    AS    OF    COURSE. 

697.  Before  pleading  is  answered. 

AMENDMENTS    BEFORE   TRIAL. 

698.  Before  the  issue?  are  closed. 

699.  After  the  issues  are  closed. 

700.  Discretion  of  court. 

701.  After  demurrer  sustained. 

702.  After  reversal    by  the   supreme 

court. 

ON    THE    TRIAL. 

703.  Amendment  changing  the  issues 

may  be  made. 

AFTER  VERDICT. 

704.  Can  not  change  the  issues. 

ON   APPEAL   FROM   JUSTICE   OF   THE 
PEACE. 

705.  llule  the  same  as* in  other  cases. 

706.  By  supplemental  pleading. 

EFFECT   OF   AMENDMENT. 

707.  Waives   ruling   on   demurrer   to 

original  pleading. 

708.  When  will  entitle  opposite  party 

to  a  continuance. 

709.  When  the  jury  must  be  re-sworn. 

710.  When  is  the  commencement  of  a 

new  action. 

711.  Amended  pleading  takes  place  of 

original. 


HOW    OBJECTION    TO    AMENDMENT 
MADE. 

713.  No  affidavit  necessary. 

AMENDMENT    OF    RECORDS. 

714.  During  the  term. 

715.  May  be  made  without  notice. 

716.  After  the  term. 

717.  Application  must  be  by  motion. 

718.  Notice  must  be  given. 

719.  May  be  made  after  appeal. 

OF    BILLS    OF    EXCEPTIONS. 

720.  Can  not  be  corrected  by  parol  ev- 

idence alone. 

OF  PROCESS. 

721.  The  summons. 

722.  Executions. 

723.  Officer's  return. 

VARIANCE   AND    FAILURE    OF    PROOF. 

724.  Variance. 

725.  Variance  and  failure  of  proof  dis- 

tinguished. 

726.  Material     only     when     opposite 

party   shows   by   affidavit   that 
he  has  been  misled. 

727.  When  will  be  deemed  amended  in 

supreme  court. 

728.  How   question    of    the    right    t> 

amend  raised. 

729.  Description    of    written     instru- 

ments. 


45G  VARIANCES  AND  AMENDMENTS.  [CiiAP. 

694.  Statutory  provisions. — "Sec.  394.  Any  pleading  may  be 
amended  by  either  party,  of  course,  at  any  time  before  the  pleading  is 
answered.     All  other  amendments  shall  be  by  leave  of  the  court.    The 
party  amending  shall  pay  the  costs  of  the  leave  to  amend.     When  the 
trial  is  not  delayed  by  reason  of  the  amendment,  no  other  costs  shall 
be  taxed.     "When  the  amendment  causes  a  delay  during  any  part  of 
the  term,  or  to  another  term,  the  party  amending  shall  pay  the  costs 
of  such  delay.     No  cause  shall  be  delayed  by  reason  of  an  amend- 
ment, excepting  only  the  time  to  make  up  issues,  but  upon  good  cause 
shown  by  affidavit  of  the  party  or  his  agent,  asking  such  delay. 

"Sec.  395.  The  affidavit  shall  show  distinctly  in  what  respect  the 
party  asking  the  delay  has  been  prejudiced  in  his  preparation  for  trial 
by  the  amendment.  When  the  action  is  continued  for  such  cause,  the 
party  asking  the  delay  shall  file  his  pleadings  at  such  time  as  the  court 
may  direct. 

"Sec.  396.  The  court  may,  at  any  time  in  its  discretion,  and  upon 
such  terms  as  may  be  deemed  proper  for  the  furtherance  of  justice,  di- 
rect the  name  of  any  party  to  be  added  or  struck  out — a  mistake  in 
name,  description,  or  legal  effect,  or  in  any  other  respect,  to  be  cor- 
rected ;  any  material  allegation  to  be  inserted,  struck  out,  or  modified, 
to  conform  the  pleadings  to  the  facts  proved,  when  the  amendment 
does  not  substantially  change  the  claim  or  defense. 

"  Sec.  397.  When  the  plaintiff  is  ignorant  of  the  name  of  the  defend- 
ant, such  defendant  may  be  designated  in  any  pleading  or  proceeding 
by  any  name  ;  and  when  his  true  name  is  discovered,  the  pleading  or 
proceeding  may  be  amended  accordingly,  either  before  or  after  service 
of  the  summons."  a 

695.  Changes  effected  by  the  statute. — These  statutory  pro- 
visions change  the  rule  as  it  existed  at  common  lew  very  materially. 
Under  common-law  pleading,    matter  of  essential  description  must  be 
strictly  proved,    as  alleged,  and  matters  of   substance  substantially 
proved.     The  right  of  a  party  to  amend  a  pleading  depends  materially 
upon  the  time  when  the  offer  to  amend  is  made.     If  the  opposite  party 
has  not  answered  the  pleading,  no  question  is  likely  to  arise,  and  it 
may  be  done  without  leave  of  court.     Leave  to  amend  may  be  asked : 
1.  After  the  opposite  party  has  answered  the  pleading,  but  before  the 
issues  are  closed ;  2.  After  the  issues  are  closed,  but  before  the  trial; 
3.  During  the  trial ;   4.  After  verdict.     After  showing  how  amend- 
ments of  pleadings  may  be  made,  the  right  to  amend,  and  upon  what 
terms,  will  be  considered.     These  questions  relate  exclusively  to  the 

(a)  B.  S.  1881,  l\  394,  395,  396,  397. 


XVIH.j  VARIANCES  AND  AMENDMENTS.  457 

pleadings.  The  right  and  proper  manner  of  amending  process  and 
the  records  in  a  cause  will  be  within  the  scope  of  this  chapter.  The 
doctrine  of  variances  between  the  pleadings  and  the  proof  will  also  be 
considered.  The  authorities  relating  to  these  questions  will  be  found 
to  be  very  conflicting,  more  particularly  those  relating  to  amendments 
upon  the  trial. 

Some  of  the  cases,  it  will  be  found,  extend  the  right  to  the  farthest 
extreme,  permitting  such  an  amendment  as  will  change  entirely  the 
cause  of  action,  while  others  hold  that  no  such  radical  change  was  in- 
tended by  the  statute.  This  same  conflict  in  the  decisions  will  be 
found  to  exist  iii  the  decided  cases  in  other  states.  The  later  cases  in 
this  state  seem  to  have  arrived  at  the  conclusion  that  the  only  test  that 
can  be  applied  in  determining  whether  an  amendment  should  be  per- 
mitted is,  whether  the  opposite  party  has  been  misled  or  prejudiced  by 
the  amendment,  and  the  burden  is  upon  him  to  show  that  he  has  been 
so  misled  or  prejudiced,  and  in  what  respect.b 

696.  Amendments,  how  made. — Pleadings  may  be  amended, 
first,  by  a  new  pleading;  second,  by  filing  an  additional  paragraph; 
third,  by  an  amendment  to  the  pleading  already  filed,  by  interlineation 
or  mutilation. 

The  practice  of  amending  by  interlineation  or  mutilation  is  a  slovenly 
practice  that  should  not  be  encouraged.  There  is,  however,  no  remedy 
for  the  evil  that  can  be  enforced  by  the  courts.  In  addition  to  the 
amendments  stated  above,  the  statute  authorizes  the  filing  of  supple- 
mental pleadings,  which  must  be  based  upon  something  that  has  oc- 
curred since  the  original  pleading  was  filed.0 

AMENDMENTS   AS    OF   COURSE. 

697.  Before  pleading  is  answered. — The  statute  expressly  au- 
thorizes a  party  to  amend  his  pleading  at  any  time  before  it  is  an- 
swered.'1    This  rule  applies  to  all  the  parties  in  the  action  and  to  all 
the  pleadings.     The  amendment  can  not  be  made  without  leave  after 
the  opposite  party  has  responded  to  the  pleading  either  by  a  motion  or 
demurrer,  or  by  a  pleading  in  abatement,  or  to  the  merits.     The  stat- 
ute contains  no  limitation  upon  this  right  of  amendment.     So  far  as 
the  defendant  is  concerned  there  is  no  reason  why  there  should  be  any 
limitation.     As  to  the  plaintiff,   no  amendment  should  be  permitted 
that  would  change  the  cause  of  action  from  the  one  named  in  the  com- 

(b)  Child  v.  Swain.  69  Ind.  230.  (d)   R.  S.  1881,  ?  894;    ante.  ?  694; 

(c)  Post,  £  706.  Farrington  v.  Hawkins,  24  Ind.  25-3. 


458  VARIANCES  AND  AMENDMENTS.  [CHAP. 

plaint.  The  injustice  that  might  result  from  such  an  amendment  is 
evident,  as  the  defendant  might  be  willing  to  suffer  a  default  as  to  the 
cause  of  action  named  in  the  complaint,  but  not  as  to  the  one  added  by 
way  of  amendment.  But,  as  I  have  said,  the  right  to  amend  under 
the  statute  is  unlimited,  and,  so  far  as  I  know,  there  is  no  decided  case 
on  the  point  in  this  state. 

In  some  of  the  states  it  is  held  that  amendments  may  be  made,  as 
of  course,  by  substituting  an  entirely  different  ^cause  of  action,  '"pro- 
vided the  summons  continues  to  be  appropriate."6 

In  those  states  in  which  notice  of  the  amendment  is  required,  as  in 
Ohio/  no  advantage  can  be  taken  of  the  right  given  by  the  statute, 
but  our  code  contains  no  such  safeguard. 

AMENDMENTS   BEFORE  TRIAL. 

698.  Before  the  issues  are  closed. — After  a  pleading  has  once 
been  answered  no  amendment  thereto  can  properly  be  made  without 
leave  of  the  court  first  obtained. 

It  is  evident,  from  a  reading  of  the  statute,  that  sections  394  and 
395  apply  exclusively  to  amendments  made  before  the  trial.  The  affi- 
davit the  opposite  party  is  required  to  make,  under  section  395,  is  that 
he  has  been  prejudiced  in  his  preparation  for  trial  by  the  amendment. 
This  evidently  applies  to  something  that  is  done  prior  to  the  trial. 
These  two  sections  contain  no  limitation  upon  the  right  of  amendment. 
So  far  as  any  provision  in  either  of  these  sections  is  concerned  the 
amendment  may  undoubtedly  change  the  cause  of  action.  This  is 
proper,  as  the  amendment  can  only  occur  after  the  pleading  has  been 
answered  and  the  parties  are  before  the  court.  It  will  appear,  here- 
after, that  these  two  sections  have  been  applied  to  amendments  made 
upon  and  after  the  trial.8 

If  they  are  to  be  so  construed,  section  396,  so  far  as  it  applies  to 
amendments,  is  surplusage.  Its  provisions  are  completely  covered  by 
the  other  sections.  This  section  was  evidently  intended  to  apply  to 
amendments  on  or  after  the  trial. h 

The  right  of  amendment,  before  the  cause  is  put  at  issue,  is  very 
liberally  extended  to  all  of  the  parties  to  the  action.  While  the 
courts  may  not  grant  the  leave  as  readily  where  the  amendment  changes 
the  cause  of  action,  the  right  to  so  amend  the  pleading  before  the  trial 
is  undoubtedly  given  by  the  broad  terms  of  the  statute ;  but  the  court 

(e)  Pom     Rem.,   §  566;     Brown    v.        (g)  Post,  \  703. 
Loigh,  12  Abb.  Pr.  (N.  S.)  193.  (h)  Post,  §  703. 

(f)  K.    S.  of   Ohio,   1880,    §  6111; 
1  Bates'  Ohio  PI.  and  Par.  161. 


XVIIJ.]  VAi:iAN<  I>  AND  AMENDMENTS.  459 

should  be.  more  strict  in  requiring  the  proper  showing,  and  the  leave 
should  not  be  granted  except  upon  such  terms  as  will  relieve  the 
opposite  party  from  the  payment  of  any  cost  occasioned  by  the  amend- 
ment.1 

699.  After  the  issues  are  closed. — There  is  no  material  differ- 
ence, so  far  as  the  mere  right  to  amend  is  concerned,  whether  the 
amendment  is  offered  before  or  after  the  issues  are  closed.     The  statute 
is  broad  enough  to  cover  an  amendment  made  at  such  time,  and  there  is 
no  valid  reason  why  the  amendment  should  not  be  permitted  even 
where  it  changes  the  cause  of  action  or  defense.     The  supreme  court 
has  held  that  an  amendment  may  be  properly  made  that  changes  the 
issues,  notwithstanding  heavy  costs  have  accrued  which  would  not  have 
accrued  had  the  amendment  been  made  at  a  prior  term.' 

700.  Discretion  of  court. — Whether  a  party  shall  be  allowed  to 
amend  his  pleadings,  especially  after  the  issues  are  closed,  is  a  matter 
very  much  within  the  discretion  of  the  court.     The  right  to  amend  is 
not  absolute  in  any  case  where  leave  of  court  is  necessary.     The  fact 
that  leave  of  court  is  necessary  implies  the  right,  on  the  part  of  the 
court,  to  refuse  to  allow  an  amendment  to  L3  made  in  every  case  ex- 
cept upon  a  proper  showing,  and,  even  where  a  showing  is  made,  the 
matter  is  still  within  the  legal  discretion  of  the  court  and  the  right  may 
be  refused.k 

When  it  is  said  that  the  matter  is  within  the  discretion  of  the  court 
it  must  not  be  understood  that  the  decision  of  the  court  is  conclusive. 
It  is  a  legal  discretion  that  may  be  reviewed  in  the  supreme  court,  and 
if  the  discretion  has  been  abused  the  cause  will  be  reversed. 

"  The  granting  of  leave  to  amend  the  pleadings  after  the  issues  are 
closed,  and- before  the  commencement  of  the  trial,  and  on  the  trial,  is 
very  much  within  the  sound  legal  discretion  of  the  lower  courts,  and 
should  only  be  granted  in  a  proper  case  and  upon  good  cause  shown  by 
affidavit,  wrhere  the  amendment  makes  a  new  issue  or  adds  a  new  cause 
of  action  or  ground  of  defense." l 

701.  After  demurrer  sustained. — Where   a  demurrer  is   sus- 
tained to  a  pleading,  an  amendment  can  only  be  made  by  leave  of  the 
court.     There  is  no  limit  to  the  number  of  amendments  that  may  be 

(i)  Burr  v.  Mendenhall,  49  Ind.  496;  (k)  Gaff  v.  Hutchinson,  38  Ind.  341. 
Gaff  v.  Hutchinson,  38  Ind.  341;  Fer-  (1)  Burr  v.  Mendenhall,  49  Ind.  496, 
guson  v.  Ramsey,  41  Ind.  511.  499;  Koons  v.  Price,  40  Ind.  164. 

( j)  Duncan  r.  Cravens,  55  Ind.  525; 
Gaff  v.  Hutchinson.  38  Ind.  341. 


460  VARIANCES  AND  AMENDMENTS.  [CHAP. 

made  under  the  statute,  but  the  right  should  be  controlled  within 
proper  limits.  The  right  to  amend  after"  a  demurrer  is  sustained  is 
granted  almost  as  a  matter  of  course.  Under  the  code  of  1852  it  was 
provided  that  if  the  court  sustained  a  demurrer  to  the  complaint  "  the 
plaintiff  may  amend  by  payment  of  costs  occasioned  thereby."111 

And  the  supreme  court  held  that  the  duty  of  the  court  to  permit 
the  amendment  was  imperative." 

Under  the  present  code  the  party  may  amend  "  upon  such  terms  as 
the  court  may  direct,  and  on  payment  of  the  costs  occasioned  by  the 
demurrer."  ° 

The  right  to  amend  is  still  a  matter  of  right,  but  the  court  may  pre- 
scribe the  terms. 

702.  After  reversal  by  the  supreme  court. — When  a  cause 
has  been  appealed  to  the  supreme  court  and  reversed,  it  stands  in  the 
court  below  the  same  as  before  the  appeal  was  taken.     If  the  cause  is 
reversed  upon  the  pleadings,  the  case  is  not  at  issue,  and  amendments 
will  be  permitted  almost  as  of  course.     If  the  cause  is  reversed  on  some 
error  committed  during  the  trial,  the  effect  of  the  reversal  is  simply  to 
grant  a  new  trial,  and  the  cause  comes  back  to  the  lower  court  at  is- 
sue.    Leave  to  amend  should  be  granted  on  the  same  terms  as  in  other 
cases  after  the  issues  are  closed. 

ON   THE   TRIAL. 

703.  Amendment   changing   the   issues  may  be  made. — • 
The  difficulty  of  properly  construing  the  statute  of  amendments  is  ap- 
parent in  a  marked  degree  when  the  amendment  is  offered  during  or 
after  the  trial.     The  great  question  has  been  whether  an  amendment 
can  be  made  changing  the  cause  of  action  or  defense.     Taking  the 
statute  alone,  I  should  say,  unhesitatingly,  that  no  such  amendment  is 
contemplated  or  provided  for.     Taking  the  decided  cases,  nothing  more 
can  be  said  than  that  they  are  in  utter  confusion,  and  the  last  one  in 
which  the  question  was  considered  holds  that  such  an  amendment  may 
be  made  at  any  stage  of  the  case.     It  is  clear  to  my  mind  that  the  stat- 
ute can  not  receive  such  a  broad  construction  without  doing  violence 
to  both  its  letter  and  its  spirit. 

As  I  have  already  attempted  to  show,  sections  394  and  395  were 
intended  to  apply  to  amendments  before  the  trial. p 

Sections  391,  392,  and  396  are  in  my  judgment  the  only  ones  that 

(m)  R.  S.  1876,  p.  59,  §  53.  (o)  R.  S.  1881,  §  342. 

(n)  Ewing  v  Patterson,  35  Ind.  325.         (p)  Ante,  §698. 


XVIII.]  VARIANCES  AND  AMENDMENTS.  461 

can  properly  be  construed  as  authorizing  an  amendment  after  the 
trial  is  entered  upon,  and  then  it  can  only  be  done  to  avoid  a  vari- 
ance, and  can  not  substantially  change  the  claim  or  defense.  1 

To  so  construe  the  other  sections  as  to  apply  to  amendments  on  and 
after  the  trial,  is  to  ignore  section  396  entirely.  The  section  author- 
izes an  amendment  to  "  conform  the  pleading*  to  the  facts  proved  when  the 
amendment  does  not  substantially  change  the  claim  or  defense."  Now  why 
this  section  should  impliedly  negative  the  right  to  change  the  claim  or 
defense  by  amending  the  pleadings  to  conform  to  the  proof,  if  the  other 
sections  expressly  confer  the  right  to  amend  without  limit  at  any  stage 
of  the  came,  can  not  be  satisfactorily  explained. 

It  has  been  held  in  a  number  of  cases  that  an  amendment  substan- 
tially changing  the  cause  of  action  or  defense  could  not  be  made  on  the 
trial/ 

It  has  also  been  held  in  both  earlier  and  later  cases  that  such  an 
amendment  is  proper  under  the  statutes.8 

It  will  be  seen  by  the  authorities  cited  that  the  greater  number  have 
held  that  an  amendment  changing  the  issues  can  not  be  made  after 
the  trial  is  entered  upon.  The  case  of  Burr  v.  Mendenhall,  is  the 
leading,  and  it  is  believed  the  only  case,  in  which  it  has  been*  held  in 
direct  terms  that  an  amendment  of  this  nature  can  be  made.  After 
quoting  a  number  of  authorities  the  court  say  :  "It  will  be  observed 
that  the  earlier  and  later  decisions  of  this  court,  computing  time  with 
reference  to  the  adoption  of  the  code,  accord  with  what  Avas  the  mani- 
fest intention  of  the  framers  of  the  code,  and  that  was  to  secure  a 
speedy  trial  of  causes  upon  their  merits,  disregarding  all  mere  formal 
and  technical  objections.  This  intension  is  manifested  in  sections  97, 
98,  and  99  of  the  code,'  which  prescribe  what  amendments  may  be 
made  and  how  a  party  may  be  relieved  against  a  judgment  taken  against 
him,  by  his  mistake,  inadvertence  or  excusable  neglect." 

The  conclusion  is  reached  that,  where  sufficient  cause  is  shown 
therefor  by  affidavit,  the  amendment  may  properly  be  made  i:i  the  dis- 
cretion of  the  court.  The  learned  judge  who  delivered  the  opinion 
cites,  as  having  decided  that  the  statute  authorizes  such  amendments, 

(q)  Post,  ?  725.  Road   Co.  v.  The   State,  16  Ind.  456; 

(r)  Miles  v.  Vanhorn,  17  Ind.  245;  Holcraft  v.  King,  25  Ind.  352;   De  Ar- 

Thompson  r.  Jones,  18  Ind.  476;  Hoot  mond  r.  Armstrong,  37  Ind.  35;  Pcoc- 

v.  Spade,  20,Ind.  326;   Landry's  Adm'r  tor  r.  Owen.*.  18  Ind.  21. 

T-.    Durham,    21    Ind.   232;     Harris    r.  (>)  Ostrander  r.  Clark,  8  Ind.  211: 

Mercer,  22  Ind.  829;  Trees  v.  Eakin,  Burr  r.  Mi-ndenhall.  49  Ind.  49G. 

V  Tnd.  554;  Kerstettcr  r.  Raymond,  10  (t)   R.  S.  1881,  §?  395,  396. 
Ind.  190;    Thu    Danville,    etc.,   Plank 


462  VARIANCES  AND  AMENDMENTS.  [dIAI% 

thirteen  cases.  I  have  carefully  examined  the  cases,  and  find  that  but 
one  of  the  number  can  be  said  to  support  the  position." 

Two  of  the  cases  decide  the  point  directly  the  other  way;7  four  of 
the  cases  decide  expressly  that  the  amendment  made  did  not  change 
the  issues  ;w  in  two,  the  amendment  was  made  before  the  trial  ;x  in 
one,  the  amendment  was  permitted  after  the  trial,  and  it  was  held  to  be 
no  part  of  the  record  because  it  was  made  after  verdict  and  changed 
the  issue  ;y  in  one,  the  amendment  did  not  in  fact  change  the  issue  ;z 
in  one,  the  point  was  not  decided  at  all  ;a  and  in  another  it  was  held 
that  it  Avas  not  error  to  refuse  to  allow  the  defendant  to  withdraw  the 
general  denial  in  order  to  obtain  the  right  to  open  and  close. b 

It  will  be  seen  from  this  review  of  the  cases  that  the  decision  is  not 
only  not  supported  by  previous  cases  but  the  authorities  are  over- 
whelmingly the  other  way. 

While  it  must  be  admitted  that  the  question  is  directly  and  clearly 
decided,  it  is  not  supported  .either  by  the  terms  of  the  statute  or  the 
authorities,  and  certainly,  it  is  not  supported  by  reason  or  justice. 

It  is  said  that  the  amendment  should  only  be  upon  affidavit  showing 
sufficient  cause,  and  the  opposite  party,  if  he  is  misled,  must  show  the 
fact  by  affidavit.  The  affidavit  of  the  opposite  party  has  nothing  to 
do  with  the  right  to  make  the  amendment.  It  can  only  be  filed  after 
the  amendment  is  made,  and  for  the  purpose  of  obtaining  a  continu- 
ance. The  simple  question  is,  whether  the  statute  authorizes  such  an 
amendment  to  be  made,  and  this  question  can  not  be  affected  either 
way  by  affidavits.  If  the  court  has  the  right  to  grant  the  leave,  the 
question  whether  the  power  should  be  exercised  in  a  given  case  may 
properly  be  determined  on  affidavit. 

AFTER  VERDICT. 

704.  Can  not  change  the  issues. — The  pleadings  may  be 
amended  after  the  verdict  of  a  jury  or  finding  of  the  court.  Such 
amendments  are  only  allowed  for  the  purpose  of  making  the  pleadings 

(u)  Ostrander  v.  Clark,  8  Ind.  211.  (x)  Taylor    v.    Dodd,    5   Ind.   246; 

(v)  Kerstetter  v.  Raymond,  10  Ind.  Koons  v.  Price,  40  Ind.  164. 
199;    The  Danville,  etc.,  Plank  Road         (y)  Maxwell  v.  Day,  45  Ind.  509. 
Co.  v.  The  State,  16  Ind.  456.  (z)  The   Wayne    County  Turnpike 

(w)  Trees  v.   Eakins,   9   Ind.   554;  Co.  v.  Berry,  5  Ind.  286. 
De   Armond    v.   Armstrong,   37   Ind.         (a)  Kerschbaugher     v.    Slusser,    12 

35;    Hackney   v.    Williams,   46    Ind.  Ind.  453. 
413;  Holcraft  v.  King,  25  Ind.  352.  (b)  Mason  v.  Sietz,  36  Ind.  516. 


::VIII.]  VARIANCES  AND  AMENDMENTS.  463 

conform  to  the  proof,  and  can  not  be  made  where  the  issues  will  be 
changed  thereby.0 

ON  APPEALS  FROM  JUSTICES  OF  THE  PEACE. 

705.  Rule  the  same  as  in  other  cases. — Where  an  appeal  is 
taken  to  the  circuit  court  from  a  justice  of  the  peace,  amendments  may 
be  made  as  in  other  cases,  so  far  as  the  mere  right  to  amend  is  con- 
cerned, but  the  terms  upon  which  the  right  is  granted  may  be  dif- 
ferent.'1 

The  right  to  amend  a  pleading  presupposes  that  there  is  something 
to  amend.  It  is -held,  therefore,  that  where  the  complaint  shows  that 
the  justice  has  no  jurisdiction,  the  complaint  can  not  be  amended  in 
the  circuit  court,  although  the  effect  of  the  amendment  is  to  bring  the 
case  within  the  jurisdiction  of  the  justice.6 

It  is  held,  also,  that  where  the  amount  sued  for  originally  is  within 
the  justice's  jurisdiction,  but  an  amendment  is  made  increasing  the 
amount  beyond  the  jurisdiction,  the  cause  should  be  dismissed/ 

The  necessity  for  amending  pleadings  before  justices  does  not  arise 
as  frequently  as  in  the  higher  courts,  as  most  of  the  defenses  may  be 
proved  without  pleading.  Where  an  amendment  is  made  to  an  answer 
that  is  unnecessarily  pleaded  before  the  justice,  such  amendment  will 
be  held  to  be  immaterial,  no  matter  how  radical  the  change  may  be, 
because  the  facts  may  alj  be  proved  without  the  pleading,  whether 
amended  or  not.8 

There  is  no  valid  reason  why  an  amendment  made  in  the  circuit 
court  on  appeal  should  not  be  allowed,  even  where  it  changes  the  issue. 
The  court  has  the  right  to  impose  such  terms  as  that  the  opposite 
party  need  not  be  injured. 

No  amendment  can  properly  be  made  after  appeal  without  leave  of 
court. h 

706.  By  supplemental  pleadings. — "  Sec.  399.  The  court  may 
on  motion  allow  supplemental  pleadings  showing  facts  which  occurted 
after  the  former  pleadings  were  filed." ' 

(c)  Aiken   v.  Bruen,   21    Ind.   137;         (e)  Kiphart  v.  Brennemen,  25  Ind. 
Maxwell  v.  Day,  45  Ind.  509;   Heddins     152. 

v.  Younglove,  46  Ind.  212;  Durham  v.  (f)  Pritchard    v.    Bartholomew,   45 

Fechheimer,  07  Ind.  35.  Ind.  219. 

(d)  Duke   v.   Brown,    18   Ind.   Ill;  (g)  Phillips  v.  Cox,  61  Ind.  345. 
The  Indianapolis  and  Cincinnati  R.  R.  (h)  Best  v.  Powers.  19  Ind.  85. 
Co.  v.  Clark,  21   Ind,  150;    Miller   v.  (i)  R.  S.  1881,  §  399. 

Beall,  2G  Ind.  234 ;   Hampton  v.  War- 
ren. 51  Ind.  288. 


464  VARIANCES  AND  AMENDMENTS.  [CHAP. 

Under  this  statute  a  supplemental  pleading  can  only  be  filed  upon 
leave  of  court.J 

The  pleading  filed  must  allege  some  matter  material  to  the  action 
pending,  that  has  occurred  since  the  filing  of  the  original  pleading, 
and  should  not  materially  alter  the  claim  or  defense. k 

The  supplemental  complaint  can  not  be  a  substitute  for  the  original, 
and  where  the  original  states  no'  cause  of  action,  it  can  not  be  mudo 
good  by  a  supplemental  complaint.  There  must  be  a  cause  of  act!  >:i 
shown  at  the  commencement  of  the  action.1 

EFFECT   OF   AMENDMENT. 

707.  Waives  ruling  on  demurrer  to  original  pleading. — 
The  effect  of  an  amendment  must  depend  very  materially  upon  the 
time  when  it  is  made.     If  made  after  a  demurrer  is  sustained  to  a 
pleading,   the  right    to    rely  upon  the  demurrer  as  error  is  waived. 
.The  amended  pleading  takes  the   place  of   the  original,  which  goes 
out  of  the  case  for  all  purposes.1" 

Ordinarily,  where  the  demurrer  is  sustained,  the  party  does  not  waive 
the  ruling  by  filing  an  additional  paragraph,  as  the  several  paragraphs 
are  regarded  as  so  many  separate  causes  of  action  ;  but  where  the 
additional  paragraph  contains  the  same  matter  in  effect  that  was  con- 
tained in  the  paragraph  to  which  the  demurrer  was  sustained,  the  rule 
applies." 

An  amendment  made  to  a  paragraph  can  not  amount  to  a  waiver 
of  an  exception  to  the  sustaining  of  a  demurrer  to  another  paragraph 
of  the  same  pleading.0 

708.  When  will  entitle  opposite  party  to  a  continuance. 
— Under  the  code  the  rule  is  well  settled  that  the  amendment  of  a 
pleading  will  not   work  a  continuance,  no  matter  how  material  the 

(j)  Martin   v.  Noble,  29   Ind.  216;  Ind.  137;    Patrick   v.  Jones,   21    Ind. 

Musselman  v.  Manley,  42  Ind.  462.  249;   Miles  v.  Buchanan,  36  Ind.  490,* 

(k)  Wheat  v.  Catterlin,  '23  Ind.  85;  Kirkpatrick  v.  Holman,  25  Ind.  293; 

Patten  v.  Stewart,  24  Ind.  332.  Holdridge  v.  Swift,  23  Ind.  118;   Alc- 

(1)  Musselman    v.  Manley,  .42  Ind.  Ewen  v.  Hussey,  23  Ind.  395;  Specht 

462.  ,  v.  Williamson,  46  Ind.  599;  The  T..- 

(m)  Palleys  v.  Swope,  4   Ind.  217;  ledo,  Wabash,  etc.,  R.  K.  Co.  v.  Roger*. 

St.  Johns  v.  Hardwick,    17  Ind.  180;  48  Ind.  427;    Busk.  Prac.  286 ;  De  Ar- 

Jay  v.  The   Indianapolis,   etc  ,  R.  R.  mond  v.  Stoneman,  63  Ind.  386. 
Co..  17  Ind.  262;  Ham  v.  Carroll,   17         (n)  Trisler  v.  Trisler,  54  Ind.  172. 
Ind.  442;  Caldwell  v.  The  Bank  of  Sa-        (o)   Washburn  v.   Roberts,    72   Irul. 

lem,  20  Ind.  294;   Aiken  v.  Bruen,  21  213.  * 


XVIII.]  VARIANCES  AND  AMENDMENTS.  465 

amendment  may  be,  without  a  showing  on  the  part  of  the  opposite 
party,  by  affidavit,  that  he  has  been  misled  thereby. 

The  affidavit  is  required  to  show  distinctly  in  what  respect  the 
party  has  been  prejudiced  in  his  preparation  for  trial  by  the  amend- 
ment.11 

There  are  numerous  authorities  holding  that  the  party  has  no  right 
to  demand  a  continuance  without  complying  with  the  statute  by  mak- 
ing the  necessary  affidavit. q 

709.  When  the  jury  must  be  resworn. — Under  the  rule  estab- 
lished by  the  latest  authorities  in  this  state,  the  pleadings  may  be  so 
changed  on  the  trial  as  to   add   a  new  cause  of   action  or  defense. 
When  the  amendment  has  the  effect  to  change  the  issue,  the  jury 
must  be  resworn/ 

710.  When  is  the  commencement  of  a  new  action. — As 
a  rule,  the  amendment  to  a  pleading  or  the  filing  of  an  additional  para- 
graph, by  way  of  amendment,  does  not  amount  to  the  commencement 
of  a  new  action,  but  the  amendment  filed  speaks  from  the  time  the 
original  pleading  was  filed  and  summons  issued  thereon.     This  is  not 
so  when  the  amendment  sets  up  a  title  not  previously  asserted,  involv- 
ing a  question  upon  'the  statute  of  limitations,  and  where  new  parties 
are  brought  in  by  the  amendment.     As  to  them  the  pleading  must 
speak  from  the  time  the  amendment  is  made.3 

This  rule  has  been  applied  where  the  action  is  brought  by  a  plaintiff 
who  has  no  cause  of  action,  and  the  proper  plaintiff  is  substituted  by 
amendment.' 

711.  Amended   pleading  takes  place  of  original. — I  have 
shown  that  where  a  demurrer  is  sustained  to  a  pleading  and  the  same  is 
amended,  the  ruling  on  the  demurrer  is  waived. u 

(p)  Ante,  §  698;  R.  S.  1881,  §§394,  Kerstetter  v.  Raymond.   10  Ind.  199; 

395.  Kerschbaugher  v.  Slusser,  12  Ind.  433  ; 

(q)  Hubler  v.  Pullen,    9  Ind.  273;  Hoot  v.  Spade,  20  Ind.  326;  Knowles 

Burr  v.  Mendenhall,  49  Ind.  496;  Hny  v.  Rexroth,  67  Ind.  59. 

v.  The  State,  58  Ind.  337;  Durham  v.  (s)  Lagow  v.  Neilson,  10  Ind.  183; 

Fechheimer,  67  Ind.  35;    Knowles  v.  Jones  v.  Porter,  23  Ind.  66;  Shaw  v. 

Rexroth,  67  Ind.  59;  Leib  v.  Butterick,  Cock,  78  N.  Y.  194;  1  Bates'  Ohio  PI. 

68  Ind.  199;  Child  v.  Swain,   69  Ind.  and  Par.  171. 

230;  McKinney  v.  Barter,  7  Blkf.  385;  (t)  Hawthorn  v.  The  State,  57  Ind. 

Taylor  v.  Jones,  1  Ind.  17.  286. 

(r)  Ostrander  v.  Clark,  8  Ind.  211 ;  (u)  Ante,  §  707. 
30 


466  VARIANCES  AND  AMENDMENTS.  [CHAP. 

This  is  on  the  ground  that  the  amended  pleading  takes  the  place  of 
the  original. 

Whether  the  pleading  is  amended  after  the  demurrer  thereto  is  sus- 
tained, or  upon  leave  without  a  demurrer  being  filed,  if  the  pleading 
filed  covers  the  material  facts  set  out  in  the  original,  the  latter  is  re- 
garded as  out  of  the  record  for  all  purposes,  and  any  subsequent  plead- 
ings based  upon  it  are  also  taken  out  of  the  record  by  the  amendment. T 

ON   WHAT  TERMS   LEAVE  TO   AMEND   GRANTED. 

712.  Costs. — The  statute  provides  that  "  the  party  amending 
shall  pay  the  costs  of  the  leave  to  amend.  When  the  trial  is  not  de- 
layed by  reason  of  the  amendment  no  other  costs  shall  be  taxed. 
When  the  amendment  causes  a  delay  during  any  part  of  the  term,  or 
to  another  term,  the  party  amending  shall  pay  the  costs  of  such 
delay."w 

This  statute  requires  that  the  party  amending  shall  pay  the  costs  of 
the  leave  to  amend  in  every  instance.  Whether  any  other  costs  shall 
be  paid  by  him  depends  upon  whether  the  amendment  causes  delay. 
It  is  not  necessary  that  the  cause  should  be  delayed  until  another  term 
in  order  to  render  him  liable  for  the  costs.  'The  rule  applies  when  a 
delay  is  caused  ''  during  any  part  of  the  term." 

It  is  said  in  some,  of  the  cases  that  the  terms  on  which  leave  to 
amend  shall  be  granted  are  within  the  discretion  of  the  court.3 

Under  the  statute  of  1833,  it  was  held  that  where  an  appeal  had 
been  taken  from  a  justice  of  the  peace  and  a  material  amendment 
made  to  the  complaint  in  the  circuit  court,  the  plaintiff  must  pay  all 
costs  that  had  previously  accrued. y 

And  under  the  present  statute,  where  the  complaint  was  amended 
by  adding  an  item  after  the  judgment  had  been  set  aside  in  proceedings 
to  review,  it  was  held  proper  to  grant  the  leave  on  the  terms  that  the 
plaintiff  pay  all  costs  accrued  since  the  issues  were  formed.1 

The  terms  upon  which  leave  shall  be  granted  is  not  a  matter  within 
the  discretion  of  the  court,  so  far  as  the  payment  of  costs  is  concerned. 
When  leave  is  granted  the  statute  fixes  the  terms,  and  the  party  mak- 

(v)  R.   S.   1881,    §   650;    Downs   v.  Trisler  v. Trisler,  54  Ind.  172;  Debreuil 

Downs,  17  Ind.  95;  Holdridge  t>.  Sweet,  v.  Davis,   48  Ind.  396;  Westerman  v. 

23  Ind.  118;   McEwen  v.  Hussey,  23  Poster,  57  Ind.  408. 
Ind.  395;  Kirkpatrick  v.  Holman,  25         (w)   R.  S.  1881,  §§  394,  411. 
Ind.   293;    Specht   v.  Williamson,  46         (x)  Murray  v.  Fry,  6  Ind.  371. 
Ind.  599;  Miles  v.  Buchanan.  36  Ind.         (y)  Maxam  v.  Wood,  4  Blkf.  297. 
490;    Yancy   v.   Teter,    39   Ind.   305;         (",)  Gaff  v.  Hutchison,  38  Ind.  341. 


XVIII.]  VARIANCES  AND  AMENDMENTS  167 

ing  the  amendment  should  be  required  to  pay  all  costs  occasioned  by 
his  amendment. 

Where  no  delay  results  the  costs  must  be  very  slight,  but  whether 
delay  is  occasioned  or  not,  the  statute  provides,  in  express  terms,  that 
the  costs  occasioned  by  the  leave  to  amend  shall  be  paid  by  the  party 
amending. 

The  court  can  not  impose  the  payment  of  the  costs  as  a  condition 
upon  which  the  leave  shall  be  granted.  The  question  of  costsshould 
have  nothing  to  do  with  the  right  to  amend.  But,  whether  it  has  or 
not,  the  party  can  not  be  compelled  to  pay  the  costs  before  proceeding 
with  the  trial.  The  most  that  can  be  done  is  to  render  a  judgment 
against  him  therefor." 

The  difficulty  is  not  so  much  in  determining  what  costs  are  required 
by  the  statute  to  be  paid,  as  in  ascertaining,  in  any  particular  case, 
what  costs  are  occasioned  by  the  delay.  In  some  cases  this  may  be 
easily  determined,  in  others  it  will  be  almost  impossible.  The  order 
of  the  court  should  be  in  accordance  with  the  statute,  that  the  part}' 
pay  all  costs  occasioned  by  the  delay,  and  the  costs  occasioned  by  the 
delay  should  be  determined  on  motion  by  the  party  interested. 

HOW   OBJECTION  TO  AMENDMENT   MADE. 

713.  No  affidavit  necessary. — The  statute  does  not  require  an 
affidavit  in  order  to  raise  the  question  whether  an  amendment  should 
or  should  not  be  allowed.  An  affidavit  is  required  where  the  party 
asks  for  delay.  It  has  been  held  by  the  supreme  court  that,  where  an 
application  is  made  for  leave  to  amend  as  to  a  material  matter,  pend- 
ing the  trial,  the  court  should  require  an  affidavit,  and  where  the 
amendment  is  allowed,  and  the  opposite  party  does  not,  by  motion 
supported  by  affidavit,  ask  for  delay  to  complete  the  issues,  when  ren- 
dered necessary  by  such  amendment,  or  to  prepare  for  trial,  the  pre- 
sumption will  be  indulged  by  the  supreme  court  that  the  party  was 
not  prejudiced  by  such  amendment;  but  if  an  application  is  made  for 
delay,  either  to  plead  or  prepare  for  trial,  and  is  overruled,  then  the 
court  will  determine  whether  there  has  been  such  an  abuse  of  discretion 
as  injuriously  affected  the  rights  of  the  party. b 

I  have  shown  that  this  decision  is  against  the  great  weight  of  author- 
ity in  this  state.  In  respect  to  the  action  of  the  court  below  in  grant- 
ing leave  to  amend,  it  proceeds  upon  the  theory  that  a  party  can  not 
be  prejudiced,  and  the  amendment  must  have  been  proper  unless  the 
party  shows,  by  motion  supported  by  affidavit,  that  he  is  entitled  to 

(a)  Duncan  v.  Cravens,  55  Ind.  525.         (b)  Burr  v.  Mendenhall,  49  Ind.496. 


468  VARIANCES  AND  AMENDMENTS.  [CHAP. 

delay.  There  is  an  apparent  inconsistency  in  this.  The  motion  and 
affidavit  are  for  delay.  The  court  so  states  and  the  statute  so  provides. 
The  overruling  of  the  motion  for  a  continuance  can  not  properly  or 
legally  affect  the  question  whether  the  amendment  is  such  a  one  as  the 
court  should  have  permitted.  The  question  whether  one  party's  mo- 
tion for  leave  to  amend  should  have  been  sustained,  is  made  to  depend 
upon  whether  a  subsequent  motion,  by  the  other  party,  for  a  continu- 
ance is  overruled  or  sustained.  It  is  difficult  to  understand  how  the 
question  whether  an  amendment  is  within  the  statute  or  not  can  be  de- 
termined by  the  subsequent  action  of  the  opposite  party  in  moving  for 
a  continuance.  If,  after  the  amendment  is  allowed,  the  party  moves  for 
delay,  this,  the  statute  provides,  must,  as  in  every  application  for  a  con- 
tinuance, be  supported  by  affidavit ;  but  this,  as  it  seems  to  me,  is  a 
question  entirely  distinct  from  the  question  whether  the  amendment  is 
rightly  allowed  or  not.  The  effect  of  the  decision  is  that  there  is  no 
limitation  as  to  the  kind  of  amendment  that  may  be  made  on  the  trial, 
the  only  question  being  whether  a  continuance  shall  be  granted. 

Where  the  application  is  for  leave  to  amend,  for  the  purpose  of 
avoiding  a  variance  between  the  pleading  and  the  proof  on  the  trial, 
under  section  391,  the  statute  expressly  requires  that  the  opposite  party 
shall  show,  by  affidavit,  that  he  has  been  misled,  and  in  what  respect; 
but  under  the  statute,  with  reference  to  variances,  there  could  not  be 
an  amendment,  to  conform  the  pleading  to  the  proof,  that  would 
amount  to  the  substitution  of  a  new  cause  of  action  or  defense,  and 
therefore  the  rule  laid  down  in  Burr  v.  Mendeuhall  could  not  apply  to 
this  section.  It  will  be  noticed,  by  an  examination  of  the  authorities, 
that  no  distinction  is  made,  in  many  of  them,  between  amendments  to 
make  the  pleadings  conform  to  the  proof  in  case  of  a  variance,  and  the 
general  statutory  provision  authorizing  amendments  to  the  pleadings 
without  reference  to  the  question  of  variance.  The  statute  expressly 
provides  that  a  failure  to  prove  a  cause  of  action  or  defense,  in  its 
general  scope  and  meaning,  is  not  a  variance  within  the  meaning  of  the 
statute,  but  a  failure  of  proof.0 

Therefore,  under  those  sections,  the  necessity  for  substituting  a  new 
cause  of  action  could  only  arise  upon  a  failure  of  proof  of  the  one 
originally  alleged. 

A  careful  examination  of  the  many  decided  cases  growing  out  of 
these  several  statutory  provisions,  will  show  that  they  have  thrown  the 
whole  subject  into  utter  confusion. 

(c)  R.  S.  1881,  §  393 ;  post,  §  725. 


XVIII.]  VARIANCES  AND  AMENDMENTS.  469 

AMENDMENT   OF   RECORDS. 

714.  During  the  term. — The  rule  is  well  settled   by  authority 
that  the  proceedings  of  the  court  are  to  be  considered  as  in  fieri  until 
the  close  of  the  term.d    It  lias  been  held,  also,  that  where  an  adjourned 
term  follows  after  the  regular  term  it  is  a  part  of  the  term,  and  the 
right  to  control  and  amend  the  records   continues  until  the  final  ad- 
journment.6 

The  court,  having  the  control  of  its  records  and  proceedings,  may, 
at  any  time  before  adjournment,  modify,  amend,  or  vacate  any  record, 
order,  or  judgment  made  during  the  term.f 

715.  May  be  made  -without  notice. — The  rule  that  the  pro- 
ceedings are  in  fieri  -until  the  close  of  the  term  implies  that  the  parties 
are  still  before  the  court,  and  amendments  of  the  records  may  be  made 
in  a  cause  without  notice  to  the  parties.8 

716.  After  the  term. — The  right  to  amend  the  records  of  the 
court  after  the  close  of  the  term  does  not  rest  with  the  court  as  a  mat- 
ter of  right.     After  the  final  adjournment  of  the  term  the  court  has 
no  further  control  over  the  records,  and  they  can  not  be  changed, 
modified  or  vacated,  except  by  a  direct  proceeding  'for  that  purpose. 

Whether  an  amendment  could  be  made,  under  the  code,  where  there 
was  nothing  to  amend  by,  was  doubted  in  the  earlier  cases. h  But  the 
rule  is  well  settled  by  later  cases  that  a  record  made  at  a  former  term  can 
only  be  amended  or  corrected  where  there  is  something  in  the  record 
by  which  to  amend.  The  right  only  extends  to  clerical  errors,  and  the 
correction  can  only  be  made  for  the  purpose  of  making  the  record  con- 
form to  the  judgment  actually  rendered.1 

(d)  Amory  v.   Reilley,  9  Ind.  490;  Burson  v.  Blair,  12  Ind.  371;  Jenkins 
Layman  v.  Graybill,  14  Ind.  166;  Gu-  v.   Long,   28  Ind.  460;  Makepeace  v. 
lick  r.  Connelly,,42  Ind.  134;  Burnside  Lukens,    27   Ind.   435;    Goodwine   v. 
r.  Ennis,  43  Ind.  411;    Kichardson  v.  Hedrick,  29  Ind.  383;  Bales  v.  Brown, 
Howk,  45  Ind.  451.  57  Ind.  282;  Latta  v.  Griffith,  57  Ind. 

(e)  Smith  v.  Smith,  Adm'r,  17  Ind.  75.  329;  Miller  v.  Royee,  Adm'r,  60  Ind. 

(f)  Burnside  v.  Ennis,  43  Ind.  411;  189;  Kambieskey  v.  The  State,  26  Ind. 
llichardson  v.  Howk,  45  Ind.  451 ;  Ky-  225;  Freeman  on  Judg.,  §61  et  seq.; 
on  v.  Thomasj  104  Ind.  59.  Sehoonover    v.    Reed,    65    Ind.   313; 

(g)  Burnside  v.  Ennis,  43  Ind.  411 ;     Hamilton  v.  Burch,  28  Ind.  233 ;  Uland 
Richardson    v.  Howk,    45    Ind.  451;    v.  Carter,  34  Ind.  344 ;  Hebel  v.  Scott, 
Lake  v.  Jones,  49  Ind.  297.  36  Ind.  226  ;  Buckner  v.  The  State.  56 

(h)  Kyle  v.  Hayward,  14  Ind.  367;  Ind.  210;  Long  v.  The  State,  56  Ind. 

Boyd  v.  Blaisdell,  15  Ind.  73.  133;  Atkins  v.  Sawyer,  1?  Am.  Dec. 

(i)  Silver  v.  Butterfield,  2  Ind.  24;  188,  193,  and  note;  s.  c.,  1  Pick  351; 

Lippencott  v.  Wygant,  2  Ind.  661;  Bramlet  p.  Pickett,  12  Am.  Dt!o.  350, 
McManus  v.  Richardson,  8  Blkf.  100; 


470  VARIANCES  AND  AMENDMENTS.  [clfAP. 

The  rule  governing  the  power  of  the  court  to  amend  its  records  after 
the  term,  is  fully  and  clearly  stated  in  the  case  of  Makepeace  v.  Lukens: 
"It  was  ruled  by  this  court,  in  the  case  of  Jenkins  v.  Long,  23  Ind. 
460,  that  the  authority  to  amend  the  record  after  the  proceedings  have 
ceased  to  be  in  fiere  is  founded  upon  the  acts  of  Parliament  on  the  sub- 
ject of  amendments,  which  are  declared  by  statute  to  be  in  force  iu 
this  state.  To  those  acts  we  must  look  in  order  to  "determine  what 
evidence  will  be  sufficient  to  authorize  the  amendment.  At  common 
law  it  was  held  that  the  judges  could  not  alter  the  proceedings  after 
they  had  become  a  record  except  during  the  same  term  of  which  the 
record  was.  The  reason  for  this  was  that,  during  the  whole  term  in 
which  any  judicial  act  is  done,  the  record  remains  iu  the  breast  of  the 
judges  of  the  court,  and,  therefore,  the  roll  is  -alterable  during  the 
term  as  they  shall  direct.  But  when  the  term  is  past  the  roll  is  the 
record,  and  admits  of  no  alteration. •>  Subsequently  it  was  permitted 
to  amend,  notwithstanding  the  record  was  made  up  and  the  term  was 
past,  considering  the  proceedings  to  be  in  fiere  till  judgment  was  given, 
but  after  the  judgment  was  entered  no  amendment  could  be  made  at 
a  subsequent  term.k  To  relieve  from  the  rigor  of  this  rule  it  was  eu- 
acted,  in  the  reign  of  Edward  III.,  '  that,  by  the  misprision  of  a  clerk, 
in  any  place  wheresoever  it  be,  no  process  shall  be  annulled  or  discon- 
tinued by  mistaking  in  writing  one  syllable  or  letter  too  much  or  too 
little ;  but,  as  soon  as  the  mistake  is  perceived,  by  challenge  of  the 
party  or  in  other  manner,  it  shall  be  amended  in  due  form  Avithout 
giving  advantage  to  the  party  that  challengeth  the  same  because  of 
such  misprision.' 1  It  being  held  by  the  courts  that  this  statute  related 
only  to  proceedings  before  judgment,  and  there  being  much  question 
as  to  the  extent  proper  to  carry  it,  the  act  of  9  Edw.  V.,  St.  1,  C.  4, 
after  reciting  the  former  statute,  declared  that '  the  King,  considering 
the  diversity  of  opinions  which  had  been  upon  the  said  statute,  and  to 
put  the  thing  in  more  open  knowledge,  had  ordained  by  authority  of 
Parliament  that  thejustices  before  whom  such  plea  or  record  is  made 
or  shall  be  depending,  as  well  by  adjournment  as  by  way  of  error  or 
otherwise,,  shall  have  power  and  authority  to  amend  such  record  and 
process  as  afore  is  said,  according  to  the  form  of  the  same  statute,  as 
well  after  judgment  in  any  such  plea,  record  or  process  given,  as  be- 

351,  and  note;  s.  c.,  2  A.  K.  Marshall,  Ind.  18;  Greenman  v.  Cohee,  01  Ind. 

10  ;  Chicbester  v.  Cande,  15  Am.  Dec.  201;  Runnels  v.  Kaylor,  95  Ind.  503. 
238,  242,  and  note;  s.  c.,  3  Cowen,  39;         (j)  Citing  Co.  Litt.  260. 
Hannah  -p.  Dorrell,  73  Ind.  465 ;  Reiley         (k)  Citing  3  Black.  Com.  25,  §  4. 
v.  Burton,  71  Ind.  118;  Kirby  v.  Bow-         (1)  14  Edw.  III.  St.  1,  c.  6. 
land,  69  Ind.  290;   Seig  v.  Long,  72 


X\in.]  VARIANCES  AND  AMMNDMKXT8.  471 

fore  judgment,  as  long  as  the  same  record  and  process  is  before  them, 
in  the  same  manner  as  the  justices  had  power  to  amend  such  record 
and  process  before  judgment  given,  by  the  force  of  the  said  statute 
Edward  III.'  This  statute,  afterward  made  perpetual,  confines  the 
amendment  to  a  syllable  or  letter,  but  permitted  it  to  be  made  after 
judgment.  By  the  8  Henry  VI.,  C.  12,  it  was  enacted,  'that  the 
King's  judges  of  the  courts  and  places  in  which  any  record,  process, 
word,  pleas,  warrant  of  attorney,  writ,  panel  or  return,  which  for  the 
time  shall  be,  shall  have  power  to  examine  such  record,  processes, 
words,  pleas,  warrants  of  attorney,  writs,  panels  or  returns,  by  them 
and  their  clerks,  and  to  reform  and  amend  (in  affirmance  of  the  judg- 
ments of  such  records  and  process)  all  that  which  to  them  in  their  dis- 
cretion seemeth  to  be  misprision  of  the  clerks  therein,  except  appeals, 
indictments  of  treason,  and  of  felonies  and  outlawries,  so  that,  by  such 
misprision  of  the  clerk,  no  judgment  shall  be  reversed  or  annulled. 
And  if  any  record,  process,  writ,  warrant  of  attorney,  return  or  panel, 
be  certified  defective,  otherwise  than  according  to  the  writing  which 
thereof  remaineth  in  the  treasury,  courts, or  places  from  whence  they 
are  certified,  the  parties  in  affirmance  of  the  judgments  of  such  record 
and  process  shall  have  advantage  to  allege  that  the  same  writing  is 
variant  from  the  said  certificate ;  and  that,  found  and  certified,  the 
same  variance  shall  be  by  the  said  judges  reformed  and  amended  ac- 
cording to  the  first  writing.'  Under  the  authorities  of  these  statutes 
alone,  can  amendments  be  made  of  the  record  when  the  proceedings 
are  no  longer  in  fiere.  and  the  term  is  passed  in  which  the  record  was 
made. 

"  It  will  be  observed  that  by  these  statutes,  the  judges  '  have  power 
to  examine  the  records,  processes,  words,  pleas,  warrants  of  attorney, 
writs,  panels,  or  returns  by  them  and  their  clerks,,  and  to  reform  and 
amend  all  that  which  to  them,  in  their  discretion,  seemeth  to  be  mis- 
prison of  the  clerks  therein.'  It  has  accordingly  been  held  that  such 
amendment  of  the  record  can  not  be  made  unless  there  is  something 
to  amend  by.  Thus,  the  original  writ  or  bill  is  amendable  by  the  in- 
structions given  to  the  officer ;  the  declaration  by  the  bill ;  the  plead- 
ings subsequent  to  the  declaration  by  the  paper  book,  or  the  draft 
under  counsel's  hand;  the  nisi  prius  roll  by  the  plea  roll;  the  verdict 
by  the  plea  roll,  memory,  or  notes  of  the  judge,  or  notes  of  the  asso- 
ciate or  clerk  of  assize ;  and  if  special,  by  the  notes  of  counsel  or 
even  by  an  affidavit  of  what  was  proved  upon  the  trial ;  the  judgment 
by  the  verdict,  and  the  writ  of  execution  by  the  judgment  or  by  the 
award  of  it  on  the  roll  or  by  former  process.™  ...  A  cause 

im)  1  Tidd,  713. 


472  VARIANCES  AND  AMENDMENTS.  [CHAP. 

proceeds  according  to  fixed  and  formal  rules ;  each  successive  step 
grows  from  and  rests,  upon  some  precedent  action,  and  should  properly 
be  tested  by  that  which  constitutes  its  immediate  support.  In  the 
case  before  us  there  is  nothing  preceding  the  order  of  sale,  which  it  is 
sought  to  have  entered,  that  implies  that  such  an  order  was  made."" 

In  the  case  quoted  from,  the  proceedings  were  upon  a  motion  for  an 
entry,  nunc  pro  tune,  of  an  order  of  sale  of  real  estate,  and  the  only 
proof  of  the  fact  that  an  order  of  sale  had  been  made  was  the  parol 
proof  of  witnesses.  The  court  held  that  the  amendment  could  not  be 
made  on  parol  evidence  alone. 

AVhere  an  action  is  upon  a  note,  or  other  written  evidence  of  in- 
debtedness, and  there  is  judgment  by  default,  if  the  amount  for  which 
judgment  is  rendered  is  erroneously  stated  the  record  may  be  corrected 
by  the  complaint  as  the  amount  is  ascertained  by  calculation,  the 
complaint  being  a  part  of  the  record.0 

So  the  minutes  kept  by  the  judge  of  the  court,  made  at  the  time, 
are  sufficient  foundation  upon  which  to  make  the  amendment,  when 
they  show  what  the  record  should  contain. p  But  the  mere  memory 
of  the  judge  is  not  sufficient. q 

While  the.  rule  is  well  established  in  this  state  that  a  record  can  not 
be  amended  upon  parol  proof  alone,  such  evidence  may  properly  be 
resorted  to,  in  addition  to  anl  in  aid  of  the  record  evidence/ 

The  order  amending  the  record  should  be  by  a  nunc  pro  tune  order, 
thus  making  the  record  speak  from  the  time  the  judgment  was  actually 
rendered.9 

717.  Application  must  be  by  motion. — The  practice  is  not 
governed  by  statute  in  this  state,  nor  is  the  right  to  amend,  after  the 
term  given  by  our  statute.  The  authorities  are  clear,  however,  that 
no  complaint  is  necessary.  The  application  must  be  by  motion,  which 
must  state  the  facts  upon  which  it  is  claimed  the  amendment  should 
be  made.' 

No  pleadings  of  any  kind  are  contemplated,  and  no  question  can  be 
raised  by  demurrer." 

(n)  Makepeace  v.  Lukens,  27  Ind.  (s)  Wilson  v.  Vance,  Adm'x,  55  Ind. 

435,437.  394;  Bush  v.  Bush,  46  Ind.  70;   Free- 

(o)  Miller   v.  Royce,  60  Ind.   189;  man  on  Judg.,  §  70;   Hannah  v.  Dor- 
Sherman  v.  Nixon,  37  Ind.  153;  Sid-  rell,  73  Ind.  465;   Keily  v.  Burton,  71 
ener  v.  Coons,   83   Ind.  183;  Gray  v.  Ind.  118. 
Robinson,  90  Ind.  527.  (t)  Latta  v.  Griffith,  57   Ind.  329; 

(p)  Freeman  on  Judg.,  §  62.  Good  wine   v.    Hedrick,   29    Ind.   383; 

(q)  Schoonover  v.  Reed,  65  Ind.  313.  Gray  v.  Robinson,  90  Ind.  527;    Kun- 

(r)  Jenkins  v.  Long,  23   Ind.  460;  nels  v.  Kaylor,  95  Ind.  503. 

Freeman  on  Judg.,  g  63;   Brownlee  v.  (u)  Goodwine   v.  Hedrick,   29   Ind. 

Board  of  Comm'rs,  etc.,  101  Ind.  401.  383;   Bales  v.  Brown,  57  Ind.  282. 


XVIII.]  VARIANCES  AND  AMENDMENTS.  473 

The  statute  provides  that  the  court  may  relieve  a  party  from  a  judg- 
ment taken  against  him  through  his  mistake,  inadvertence,  surprise, 
or  excusable  neglect,  and  supply  an  omission  in  any  proceedings.T 

It  is  held  that  in  a  proceeding  under  this  section  of  the  statute  to 
supply  an  omission,  the  motion  or  complaint  must  he  filed  within  two 
years. w  But  this  section  applies  to  omissions  in  the  proceedings,  and 
not  to  amendments  of  the  records  where  no  proceedings  have  been 
omitted  by  the  court. x 

718.  Notice  must  be  given. — In  some  of  the  states,  where  it  is 
held  that  the  court  must  look  to  the  record  alone  in  making  the  amend- 
ment, and  parol  proof  can  not  be  resorted  to  for  any  purpose,  it  is  also 
held  that  no  notice  to  the  parties  is  necessary  ;  but  in  this  state,  as  I 
have  shown,  parol  proof  may  be  made  in  aid  of  the  record,  and  no 
amendment  can  be  made  after  the  proceedings  cease  to  be  in  fieri,  with- 
out reasonable  notice  to  the  opposite  parties. y 

No  summons  is  necessary  or  proper.-d)  The  notice  need  not  be  for  ten 
days  or  any  fixed  time.  It  must  be  for  a  reasonable  time,  and  what  is 
a  reasonable  time  must  be  determined  by  the  circumstances  of  each 
particular  case.2 

719.  May  be  made  after  appeal. — The  fact  that  an  appeal  has 
been  taken  from  the  judgment  does  not  take  away  the  right  to  have  it 
amended,  no  matter  who  takes  the  appeal.* 

The  appellate  court  has  no  power  to  correct  the  record  on  appeal. 
It  becomes  necessary,  therefore,  if  any  defect  in  the  record  is  discov- 
ered, that  the  same  shall  be  corrected  and  certified  to  the  supreme 
court,  when  it  becomes  a  part  of  the  record  in  that  court. b 

OF    BILLS   OF  EXCEPTIONS. 

720.  Can  not  be  corrected  by  parol  evidence  alone. — The 
rule  that  a  record  can  not  be  amended  by  parol  evidence  alone  has 
been  applied  to  bills  of  exceptions.0 

And  the  time  given  by  the  court  in  which  to  file  a  bill  of  exceptions 
can  not  be  inserted  upon  parol  proof. d 

(v)  K.  S.  1881,  §  396.  Ind.  107;   Rew  v.  Barker,  14  Am.  Dec. 

(w)  Douglas  v.  Kuhn,  78  Ind.  199.  515,  516,  and  note ;  s.  c.,  2  Cowen,  408. 

(x)  Hannah  v.  Dorrell,  73  Ind.  465,  (b)   Busk.  Prac.  338 ;  Jones,  Adm'r, 

469.  v.  Van  Patten,  3  Ind.  107. 

(y)  Bales  v.  Brown,  57  Ind.  282.  (c)  Hamilton  v.  Burch,  28  Ind.  233; 

(z)  Hebel  v.  Scott,  36  Ind.  226.  Seig   v.   Long,  72   Ind.   18;    Kirby   v. 

(1)  Gray  v.  Robinson,  90  Ind.  527.  Bowland,  69  Ind.  290. 

(a)  Jones,  Adm'r,  p.  Van  Patten,  3  (d)  Schouiiover  v.  Reed,  65  Ind.  313. 


474  VARIANCES  AND  AMENDMENTS.  [CHAP. 

A  statement  in  the  bill  of  exceptions,  signed  by  the  judge,  that  time 
was  given,  can  not  be  used  to  show  what  time  was  given,  as  it  occurs 
subsequent  to  the  time  when  the  leave  must  have  been  granted  to  be 
effectual.6 

OF    PROCESS. 

721.  The  summons. — The  summons  may  be  amended  by  the 
complaint  in  some  cases.     Thus,  it  is  held  that  where  the  Christian 
name  of  the  plaintiff  is  erroneously  stated  in  the  summons,  it  may  be 
amended  so  as  to  conform  to  the  complaint,  when  the  name  is  correctly 
stated  in  the  complaint/ 

But  the  summons  can  not  be  so  amended  as  to  substitute  a  different 
plaintiff^ 

It  is  also  held  that  where  a  precipe  is  filed  for  a  writ,  the  writ,  if 
erroneous,  may  be  amended  by  theprecipe.h 

The  summons  may  be  amended  by  striking  out  the  names  of  a  part 
of  the  defendants,  where  the  names  have  been  stricken  out  of  the  com- 
plaint.1 

Where  the  name  of  a  defendant  is  erroneously  stated  in  the  sum- 
mons, but  the  same  has  been  served  on  the  proper  person,  it  may  be 
amended  by  correcting  the  name.J 

The  right  to  amend  process  has  been  extended  to  the  attaching  of 
the  seal  of  the  officer,  after  service  has  been  made  ;k  and  where  an  of- 
ficer is  sued  for  false  imprisonment,  he  may  justify  under  a  writ  issued 
without  the  officer's  seal.1 

The  affixing  of  the  seal  may  be  ordered  by  the  court,  without  any 
motion,  or  upon  the  motion  of  an  interested  party;  and  when  attached, 
it  will  validate  the  proceedings  had  ab  initio  for  all  purposes."1 

It  may  be  laid  down  as  a  general  rule  that  the  summons  may  be 
amended,  where  no  injury  can  result  to  the  parties." 

722.  Executions. — An  execution  may  be  amended,  as  other  writs, 
where  there  is  something  to  amend  by.0    The  right  to  amend,  by  at- 

(e)  Schoonover  v.  Reed,  65  Ind.  313.  (j)  Weaver  v.  Jackson,  8  Blkf.  5; 

(f )  Haines  v.  Bottorff,  17  Ind.  348;  The  New  Albany  and  Salem  R.  R.  Co. 
Woodward  v.  Wous,  18  Ind.  296;  The  v.    Laiman,   8   Ind.   212;    Johnson  v. 
State  v.   Bryant,  5  Ind.  192;  Abshire  Patterson,  59  Ind.  287. 

v.  Mather,  27  Ind.  381.  (k)  Hunter  v.  The  Burnsville  Turn- 

(g)  Woodward  v.  Wous,  18  Ind.  296.     pike  Co.,  56  Ind.  213;  Boyd  v*  Fitch, 
(h)   Beck  v.  Williams,  5  Blkf.  374;     71  Ind.  306. 

The  State  v.  Hood,  6  Blkf.  260.  (I)  Dotninick  v.  Backer.  3  Barb.  17. 

(i)  Taylor  v  Jones,  1  Ind.  17;  Henry  (in)    Boyd  v.  Fitch,  71  Ind.  306. 

•v.  The  State  Bank  of  Indiana,  3  Ind.  (n)  Simcoke  v.  Frederick,  1  Ind.  54. 

216.  (o)  Reily  v.  Burton.  71  Ind.  118. 


XVIII.]  VARIANCES  AND  AMENDMENTS.  47") 

taching  the  seal  of  the  officer,  has  been  extended  to  cases  where  a  ju- 
dicial sale  has  been  made  under  the  writ.  It  is  held  that  the  omission 
of  the  seal  renders  the  writ  voidable  and  not  void,  and  therefore  the 
seal  may  be  attached  after  the  sale,  thereby  legalizing  the  sale,  that 
would  otherwise  be  in  valid. p 

723.  Officer's  return. — Great  liberality  is  showrn  in  permitting 
the  amendment  of  an  officer's  return.  1 

The  return  should  speak  the  truth,  and  generally,  if  not  always,  an 
amendment,  for  the  purpose  of  making  the  return  state  the  facts  as 
they  really  existed  at  the  time,  will  be  permitted.  In  some  of  the 
cases,  it  is  said  that  the  amendment  may  be  made,  as  of  course,  by  the 
officer ;  but  this  is  not  the  case,  and  should  not  be. 

Where  the  writ  has  been  returned  and  filed,  it  becomes  a  record  that 
can  not  be  amended,  without  the  permission  of  the  court/  But  while 
the  amendment  should  be  made  under  the  sanction  of  the  court,  it  is 
allowed,  almost  as  a  matter  of  course,  where  it  appears  not  to  speak 
the  truth.3 

The  amendment  of  a  return  is  the  act  of  the  officer ;  and  while  the 
consent  of  the  court  may  be  necessary,  after  the  writ  is  filed,  the  court 
has  no  power  to  compel  the  officer  to  make  the  amendment.' 

The  question  whether  the  alteration  made  is  material  or  not,  does  not 
affect  the  right  to  make  the  amendment.™ 

The  most  radical  changes  are  permitted  by  the  courts,  and  there  may 
be  said  to  be  no  limitation  of  the  right  of  the  officer  to  make  the 
•amendment,  or  of  the  court  to  permit  it,  except  that  the  return  should 
always  be  made  to  conform  to  the  facts.  The  effect  the  amendment 
may  have  upon  rights  that  may  have  intervened,  upon  the  basis  of  the 
original  return,  is  a  matter  about  which  the  authorities  are  conflicting/ 

(p)  Hunter  v.  The  Burnsville  Turn-  (t)  Walter  v.  Palmer,  18  Ind.  279; 

pike  Co.,  56  Ind.  213 ;  Reily  v.  Burton,  Malone  v.  Samuel,  13  Am.  Dec.  172, 

71  Ind.  118.  and  note. 

(q)  Dwiggins  v.  Cook,  71  Ind.  579.  (u)  Walter  v.  Palmer,  18  Ind.  279 ; 

(r)   Malone  v.  Samuel,  13  Am.  Dec.  Malone  v.  Samuel,  13  Am.  Dec.  172, 

172,  and  note ;  s.  c.,  3  A.  K.  Marshall,  and  note. 

350.  (v)  See  Malone  v.  Samuel,  13  Am. 

(s)  Jackson  v.  The  O.  &  M.  R.  R.  Dec.  172,  and  the  note,  in  which  the 

Co.,  15  Ind.  192;    The  New  Albany,  various    questions    arising    upon    the 

etc.,  R.  R.  Co.  v.  Laiman,  8  Ind.  212 ;  amendment  of  an  officer's  return  are 

The  New   Albany,  etc.,  R.  R.  Co.  v.  thoroughly  considered,  and  numerous 

Chamberlain,  8  Ind.  278;  De  Armond  authorities     cited     from    the    several 

v.   Adams,    25   Ind.   455;    Walter    v.  states. 
Palmer,  18  Ind.  279 ;  The  Evansville, 
etc.,  R.  R.  Co.  v.  Lawrence,  29  Ind.  622. 


47G  VARIANCES  AND  AMENDMENTS.  [CHAP. 

There  is  no  time  limited  in  which  the  amendment  shall  be  made. 
The  question  whether  the  amendment  shall  be  allowed  or  not,  is  said  to 
be  very  much  within  the  discretion  of  the  court,  and  this  discretion 
\\ill  naturally  be  influenced  by  the  lapse  of  time  and  the  proceedings 
had  and  rights  that  have  intervened,  but  the  right  to  make  the  amend- 
ment is  not  affected  by  the  lapse  of  time.w 

.An  officer  may,  with  the  sanction  of  the  court,  amend  his  return 
after  his  term  of  office  has  expired.1 

Some  of  the  cases  hold  that  an  officer's  return  may  be  amended 
after  his  death,  but  this  is  inconsistent  with  the  doctrine  that  the 
amendment  must  be  made  by  the  officer,  and  can  not  be  made  by  the 
court,  and  the  power  to  make  the  amendment  after  the  officer's  death 
may  well  be  doubted. 

VARIANCE  AND  FAILURE  OF  PROOF. 

724.  Variance. — "  Sec.  391.    No  variance  between  the  allegations 
in  a  pleading  and  the  proof  is  to  be  deemed  material,  unless  it  have 
actually  misled  the  adverse  party  to  his  prejudice  in  maintaining  his 
action  or  defense  upon  the  merits.     Whenever  it  is  alleged  that  a 
party  has  been  so  misled,  that  fact  must  be  proved  to  the  satisfaction 
of  the  court,  and  it  must  be  shown  in  what  respect  he  has  been   misled, 
and  thereupon  the  court  may  order  the  pleading  to  be  amended  on  such 
terms  as  may  be  just. 

"  Sec.  392.  Where  the  variance  is  not  material,  as  provided  in 
the  last  section,  the  court  may  direct  the  fact  to  be  found  according  to. 
the  evidence,  or  may  order  an  immediate  amendment  without  costs." 

725.  Variance  and  failure  of  proof  distinguished.—"  Sec. 
393.     When,  however,  the  allegation  of  the  claim  or  defense  to  which 
the  proof  is  directed  is  unproved,  not  in  some  particular  or  particulars 
only,  but  in  its  general  scope  and  meaning,  it  is  not  to  be  deemed  a 
case  of  variance  within  the  last  two  sections,  but  a  failure  of  proof"? 
Before  an  amendment  can  be  made  under  these  three  sections  of  the 
statute  there  must  be  a  variance,  as  the  same  is  defined  by  the  last  sec- 
tion.    It  must  follow,  necessarily,  that  there  can  be  no  such  amend- 
ment as  will  substitute  a  new  cause  of  action  or  defense,  as  the  neces- 
sity for  alleging  a  new  cau^e  of  action  or  defense  could  only  arise  upon 
failure  of  proof  as  to  the  original  complaint  or  answer.  (1) 

The  evident  object  ,aud  purpose  of  these  statutory  provisions  is  to 
allow  an  amendment  where  there  is  a  variance  in  the  proof  of  an  alle- 

(w)  Freeman  on  Ex.,  g  359.  (1)  See   Bartlett  v.  Pittsburg,   etc., 

(x)   Dwiggins  v.  Cook,  71  Ind.  579.     Ry.  Co.,  94  Ind.  281;  Cleveland,  etc., 
(y)  R.  S   1881,  §§  391-393.  Ry.  Co.  v.  Wynant,  100  Ind.  160. 


XVIII.]  VARIANCES  AND  AMENDMENTS.  477 

gation  of  fact,  although  material  aud  necessary  to  make  out  the  cause 
of  action.  But  the  cause  of  action  must  remain  the  same  as  originally 
alleged.  If  the  facts  alleged  and  the  proof  differ  in  their  general  scope 
there  is  no  variance,  and  no  right  of  amendment  can  arise  under  this 
section. z 

The  fact  that  the  amendment  is  material  does  not  affect  the  right. 
If  it  is  immaterial,  there  is  no  necessity  for  an  amendment.  It  does 
not  matter  how  material  it  may  be ;  so  long  as  it  does  not  amount  to  a 
failure  of  proof  the  statute  gives  the  right  to  amend  subject  to  the  right 
of  the  opposite  party  to  prevent  it  by  a  showing  that  he  has  been  mis- 
led by  the  variance. 

726.  Material  only  -when  opposite  party  shows  by  affidavit 
that  he  has  been  misled. — Where  it  appears  that  there  is  a  vari- 
ance within  the  meaning  of  the  statute  and  not  a  failure  of  proof,  there 
is  but  one  test  of  the  materiality  of  the  variance.     It  is  material  when 
it  has  "actually  misled  the  adverse  party  to  his  prejudice  in  maintaining 
his  action  or  defense  on  tJie  merits."     The  question  whether  he  has  been 
.misled  must  be  determined  upon  a  showing  of  the  party  by  affidavit. 
He  must  not  only  show  that  he  has  been  misled,  but  the  affidavit  must 
show  in  what  respect  he  has  been  prejudiced. 

This  was  not  the  rule  in  the  earlier  cases. a 

But  the  rule  is  well  established,  not  only  by  the  direct  provision  of 
the  code,  but  by  the  decided  cases. b 

It  must  not  be  overlooked,  however,  that  where  there  is  such  a. 
difference  in  the  allegations  of  the  pleading  and  the  proof  as  to  amount 
to  a  failure  of  proof,  it  must  be  conclusively  presumed  that  the  amend- 
ment offered  to  meet  the  proof  is  material,  and  the  amendment  not 
authorized  by  the  statute.  In  such  case  no  showing  is  necessary  on 
the  part  of  the  opposite  party,  as  there  is  no  variance,  and  the  case  is 
not  within  the  statute. 

727.  When   will  be   deemed   amended   in   the   supreme 
court. — In  addition  to^the  statutory  provisions  above  set  out,  the  stat- 
ute further  provides: 

"  Sec.  658.  No  judgment  shall  be  stayed  or  reversed  in  whole  or  in 
part  by  the  supreme  court  for  any  defect  in  form,  variance,  or  im- 

(z)  Howe  v.  Beckett,  30  Ind  154;  (b)  Hamilton  v.  Winterowd,  4o  T' <1. 

The  Je&ersonville,  etc.,  TC.  R.  Co.  r.  393;  The  Jefferson ville,  etc.,  11.  R.  Co. 

Worland,  50  Ind.  339;  Straus  v.  Ross,  v.  Worland,  50  Ind.  339;  Perry  r.  Bur. 

25  Ind.  -°>00.  nett.  65  Ind.  522 ;  Boardman  v.  Griffin. 

(a)  Osborne  v.  Fulton,  1  Blkf.  2H3 ;  52  Ind.  101;  The  City  of  IIuntin«rt->'i 

Taylor  r.  Coquillard,  5  Blkf.  158;  Las-  r.  Mendenhall.  7:)  Ind.  400;  Raymond 

selle  v.  Hewson,  5  Blkf.  161.  v.  Parisho,  70  Ind.  256. 


478  VARIANCES   AND   AMENDMENT.  [CHAP. 

perfections  contained  in  the  records,  pleadings,  process,  entries,  returns, 
or  other  proceedings  therein  which  by  law  might  be  amended  by  the 
court  below.  But  such  defects  shall  be  deemed  to  be  amended  in  the  su- 
preme court.  Nor  shall  any  judgment  be  stayed  or  reversed  in  whole 
or  in  part  where  it  shall  appear  to  the  court  that  the  merits  of  the 
cause  have  been  fairly  tried  and  determined  in  the  court  below."  c 

This  section  of  the  statute  is  usually  construed  in  connection  with 
those  providing  for  amendments  in  case  of  variances,  and  it  is  held 
that  where  the  amendment  might  have  been  made  in  the  court  be- 
low it  will  be  deemed,  in  the  supreme  court,  to  have  been  made.d 

It  has  been  held  that  an  amendment  that  must  be  verified  can  not 
be  deemed  to  have  been  made.6 

728.  How  question  of  the  right  to  amend  raised. — I  have 
shown  that  the  amendment  in  case  of  a  variance  can  only  be  regarded 
as  material  where  the  affidavit  provided  for  by  the  statute  is  made. 
Without  the  affidavit,  if  the  variance  between  the  pleadings  and  the 
proof  does  not  amount  to  a  failure  of  proof,  no  question  can  be  raised 
as  to  the  materiality  of  the  amendment,  and  the  supreme  court  will 
presume  it  to  have  been  immaterial.  In  regard  to  the  necessity  for  an 
affidavit,  no  distinction  seems  to  have  been  made  in  many  of  the  cases 
between  amendments  made  to  avoid  a  variance  and  such  as  are  made 
under  the  section  providing  -for  amendments  generally.  I  have  at- 
tempted to  show  that  sections  393  and  394  have  no  reference  to 
amendments  made  on  the  trial. f 

The  affidavit  must  show,  as  required  by  section  391,  that  the  party 
has  been  misled  to  his  prejudice,  "in  maintaining  his  action  or  defense 
upon  tfie  merits,"  and  not  "  in  his  preparation  for  trial,"  as  in  case  of  an 
amendment  under  sections  394  and  395,  before  the  trial. 

Where  there  is  a  failure  to  prove  the  claim  or  defense  in  its  general 
scope  and  meaning,  there  is  no  waiver  by  a  failure  to  make  affidavit  at 
the  time ;  and  where  objection  is  made  to  evidence  offered,  that  does 
not  go  to  prove  the  cause  of  action  or  defense  alleged,  but  another  and 
different  one,  the  evidence  should  be  excluded.  No  amendment  can 
make  the  evidence  competent,  and  the  question  arises  upon  a  motion 

(c)  R.  S.  1881,  §658.  Ind.  236;    Perry  v.  Barnett,   65  Ind. 

(d)  Torr  v.  Torr,  20  Ind.  118;  Me-  522;   Boardmun  <-.  Griffin,  52  Ind.  101  ; 
Kinleyu.  Shank,  24  Ind.  258;   Lowry  The  City  of  Huntington  v.  Mendenhall, 
v.  Button,  28  Ind.  473;    Numbers  v.  73  Ind.  460;  Krutz  v.  Howard,  70  Ind. 
Bowser,  29  Ind.  491 ;   Barnes  v.  Smith,  174;    Scheib'e   ?-.    Law,   65   Ind.  332; 
34  Ind.  516;  Lucas  v.  Smith,  42  Ind.  Busk.  Prac.  388. 

103;  Hamilton  v.  Winterowd,  43  Ind.         (e)  Raymond  a.  Parisho,  70  Ind.  256. 
393;  Krewson  v.  Cloud,  45  Ind.  273;         (f)  Ante,  g  698. 
The  Bristol  Hydraulic  Co.  v.  Boyer,  67 


XVIII.]  VARIANCES  AND  AMENDMENTS.  479 

for  a  new  trial,  on  the  ground  that  the  verdict  is  not  sustained  by  suf- 
ficient evidence.  To  hold  otherwise  would  be  a  plain  perversion  of 
the  object  and  meaning  of  the  statute.8 

729.  Description  of  written  instruments. — The  effect  of  a 
variance  in  the  description  of  the  written  instrument  pleaded  and  the 
one  offered  in  evidence  depends  upon  whether  it  is  the  foundation  of 
the  action  or  not.  If  it  is  a  variance  between  the  complaint  and  the 
exhibit,  the  iustrumeut  being  made  a  part,  by  copy,  or  by  filing  the 
original,  the  exhibit  controls  the  allegations  of  the  pleading.h  There- 
fore, if  the  exhibit  is  correct,  although  the  instrument  be  misdescribed 
in  the  body  of  the  pleading,  there  is  no  variance.  But  where  there  is 
a  variance  between  the  exhibit  and  the  original  offered  in  evidence,  or 
where  the  written  instrument  is  described  in  the  pleading,  but  not  the 
foundation  of  the  action,  the  statute  applies  as  in  other  cases,  and  the 
variance  will  only  be  material  if  it  misleads,  the  party  or  makes  out 
another  and  different  cause  of  action.' 

The  statute  provides  that  "  any  variance  between  any  pleading  and 
copy  of  a  written  instrument,  filed  as  to  matter  of  description  or  legal 
effect,  may  be  amended  at  any  time  (as  of  course)  before  judgment, 
without  causing  a  continuance."J 

This  statute  does  not  apply  to  a  variance  between  the  pleading  and 
the  proof,  but  between  the  allegations  of  the  pleading  and  the  exhibit. 
As  the  exhibit  controls  the  averments  of  the  pleading,  no  amendment 
is  necessary,  and  the  statute  is  unimportant. 

'    (g)  Boardman   v.    Griffin,    52   Ind.         (i)  Krutz  v.  Howard,  70  Ind.  174; 

101;  Perry  v.   Barnett,   65   Ind.  522;  Lucas  v.  Smith,  42  Ind.  103 ;  Krewson 

The  City  of  Huntington  v.  Menden-  v.  Cloud,  45  Ind.  273;  1   Bates'  Ohio 

hall,  73  Ind.  460;  Johnson  v.  Moss,  45  PI.  and  Par.  185;  Patterson  v.  Jones,- 

Cal.  515.  27   Ind.   457;    Davis   v.   Doherty,   69 

(h)  Ante,  §416.  Ind.  11. 

(j)  B.  S.  1881,  g  362. 


480 


THE   TKIAL. 


[[CHAP. 


CHAPTER  XIX. 

THE  TRIAL. 


SECTION. 

730.  Trial  defined. 

ISSUES. 

731.  Generally. 

732.  Order  of  forming  issues. 

ISSUES  OF  LAW. 

733.  How  raised  and  tried. 

ISSUES   OF    FACT. 

734.  Raised  by  answer  and  reply. 

735.  By    answer    in    abatement    first 

tried. 

736.  May  be  waived. 

WHEN    CAUSE     MAY    BE    CALLKD     FOR 
TRIAL. 

737.  At  first  term  ;  exception. 

CONTINUANCE. 

738.  Generally. 

739.  Absence  of  evidence. 

740.  Evidence  must  be  material. ' 

741.  Must  show  due  diligence. 

742.  The  name  and   residence  of  the 

witness. 

743.  Probability  of  procuring  the  tes- 

timony. 

744.  That  the  facts  can  not  be  proved 

by  any  other  witness. 

745.  The  facts  to  which  he  believes  the 

witness  will  testify,  and  that  he 
believes  them  to  be  true. 

746.  Competency  of  the  witness. 

747.  If  opposite  party  will  admit  that 

the  witness  will  testify  to  the 
facts,  or,  if  it  is  documentary 
evidence,  that  it  is  true,  contin- 
uance will  not  be  granted. 


SECTION. 

748.  On  account  of  the  absence  of  a 

party. 

749.  On  account  of  the  absence  of  an 

attorney. 

750.  "Who  may  make  the  affidavit. 

751.  On  suppression  of  depositions,  or 

filing  same  too  late. 

752.  Second   application   during  same 

term. 

753.  Affidavit  may  be  amended. 

754.  For  process. 

755.  For  answers  to  interrogatories. 

756.  Defendant     constructively    sum- 

moned. 

TRIAL    BY    JUKY. 

757.  Number  of  jurofs. 

HOW  SELECTED. 

758.  Eegular  panel. 

759.  Special  venire. 

760.  Special  jury. 

761.  Struck  jury. 

762.  Talesmen. 

763.  Qualification  of  jurors. 

764.  Juror  must  be  disinterested. 

765.  Having  formed   or  expressed  an 

opinion. 

766.  Public  interest. 

CHALLENGES. 

767.  For  cause. 

768.  Peremptory  challenges. 

769.  Challenge  to  the  array. 

770.  Challenge  to   the  poll   or  to   the 

array  must  be  made  before  the 
jury  is  sworn. 

771.  Discharge  of  competent  juror. 


XIX.] 


THE   TRIAL. 


481 


772.  Examination  of  juror   as   to   his 

competency. 

773.  Juror  having  suit  in  court. 

774.  Swearing  the  jury. 

775.  Mental    and    physical    qualifica- 

tions. 

776.  Persons  exempt   from  service  as 

jurors. 

OPEN    AND    CLOSE. 

777.  Party  having  the  burden  of  the 

issue  entitled  to  begin. 

778.  The  opening  statement. 

779.  The  evidence. 

780.  The  closing  argument. 

INSTRUCTIONS. 

781.  Special  instructions. 

782.  May   be   modified,  but   not   ver- 

bally. 

783.  When  proper  instructions   asked 

may  be  refused. 

784.  General  instructions. 

785.  Must    be    in    writing   when    re- 

quested. 

786.  Error  to  give  any  part  of  instruc- 

tions  orally,  over   request  that 
they  be  in  writing. 

787.  Must  be  applicable  to  the  issues 

and  the  evidence. 

788.  Must  not  assume  a  fact  to  be  true. 

789.  When  the  court  may  instruct  the 

jury  to  find  for  either  party. 

790.  Additional   instructions    may   be 

given  where  the  jury  disagrees. 

791.  Instructions  must  be  numbered. 

792.  Must  be  settled  before  the  argu- 

ment, when  requested. 

793.  When      erroneous       instructions 

harmless. 

794.  How  erroneous  instructions  cured. 


EXCEPTIONS   TO    INSTRUCTIONS. 

795.  When  must  be  taken. 

796.  How  to  be  taken. 

797.  The  jury  may  view  property  or    821.  Generally. 

place. 

798.  The    jury    must     be    cautioned, 

when  allowed  to  separate. 
31 


799.  What   papers   may  be   taken   to 

the  jury  room. 

800.  Polling  the  jury. 

801.  When  the  jury  may  be  discharged. 

TRIAL   BY   THE   COURT. 

802.  Governed  by  same  rules  as  trial 

by  jury. 

803.  Special  finding. 

804.  Must  be  at  the  request  of  one  or 

both  of  the  parties. 

805.  Must  be  in  writing,  and  should  be 

signed  by  the  judge. 

806.  Must   contain   the    facts  not  evi- 

dence. 

807.  Must  contain  all  the  facts  neces- 

sary to  a  recovery. 

808.  Only     facts     within     the     issues 

should  be  included  in  the  find- 
ing. 

809.  Exception  must  be  to  the  conclu- 

sions of  law. 

810.  Does  not  waive  motion    for  new 

trial  or  for  a  venire  de  novo. 

TRIAL    BY    AGREED    CASE. 

811.  The  statute. 

812.  Affidavit    necessary   to  give   the 

court  jurisdiction. 

813.  Statement  of  facts  must   show  a 

cause  of  action. 

TRIAL    BY    REFEREES. 

814.  What  may  be  referred. 

815.  How  referees  selected. 

816.  The  trial  conducted  the  same  as  a 

trial  by  the  court. 

817.  Nature  and  effect  of  referees'  re- 

port. 

818.  How  exceptions  must  be  taken. 

819.  Objections  to  the  report. 

820.  Referees'  duties  end  with  the  re- 

port. 


TRIAL    BY    MASTER   COMMISSIONER. 


WHAT  CAUSES  ARK   TRIABLE   BY  JURY. 

822.  The  statute. 


482  THE   TRIAL.  [CHAP. 

"WHAT  CAUSES  WERE  TRIABLE  BY  JURY         HOW    JURY    TRIAL    MAY    BE    WAIVED. 

UNDER  THE  CODE  OF  1852.  828.  The  statute. 

823.  Civil  actions.  829.  "When  jury  waived  by  failure  to 

824.  Causes  in  which  the  right  of  trial  appear. 

by  jury  has    been    held    not  to     830.  What  will  amount  to  oral  consent 
exist.  entered  of  record. 

825.  Causes  that  have  been  held  to  be 

triable  by  jury.  DISMISSAL  OF  ACTION. 

831.  When  action  may  be  dismissed. 

CAUSES     TRIABLE     EXCLUSIVELY    BY  832.  Dismissal  in  vacation. 

COURTS  OF  CHANCERY,  PRIOR  TO  833.   By  the  court. 

JUNE  18,  1852.  834.  Effect  of  dismissal;    stay  of  pro- 

826.  General  discussion.  eeedings   in   second   action    for 

827.  Causes  enumerated.  payment  of  costs. 

835.  Set-off;  counterclaim. 

730.  Trial  defined. — "  The  trial  is  a  judicial  examination  of  the 
issues,  whether  of  law  or  of  fact,  in  an  action. "a 

ISSUES. 

731.  Generally. — "Sec.  406.  Issues  arise  on  the  pleadings  where 
a  fact  or  conclusion  of  law  is  maintained  by  one  party  and  controverted 
by  the  other.     They  are  of  two  kinds : 

"First.  Of  law. 

"Second.  Of  fact. 

"  Sec.  407.  An  issue  of  law  arises  upon  demurrer  to  the  complaint, 
answer,  or  reply,  or  to  some  part  thereof. 

' '  Sec.  408.  An  issue  of  fact  arises : 

"First.  Upon  a  material  allegation  in  the  complaint  denied  by  the 
answer. 

"Second.  Upon  material  new  matter  in  the  answer  denied  by  the 
reply. 

"Third.  Upon  material  new  matter  in  the  reply,  which  shall  be  con- 
sidered as  controverted  by  the  opposite  party  without  further  pleading."  b 

The  word  "  issue,"  as  used  in  the  statute,  has  a  technical  meaning. 
It  is  the  point  in  dispute  between  the  parties  on  which  they  put  their 
cause  to  trial. c 

Under  the  code  system  of  pleading  there  may  be  several  issues  of 
fact  pending  at  the  same  time,  which  may  be  tried  in  the  same  ac- 
tion. The  object  of  the  code  is  to  present  the  whole  controversy  con- 
nected with  the  plaintiffs  original  cause  of  action,  or  matters  that 
may  be  pleaded  as  set-offs  thereto,  in  one  and  the  same  action.  To 

(a)  Jl.  8.  1881,  §  517.  (c)   Wolcott  v.  Wigton,  7  Ind.  44. 

(b)  K.  S.  1881,  H  406,  407,  408. 


XIX. j  THE   TRIAL.  483 

this  end  counterclaims  and  set-offs  are  permitted,  and  the  parties  are 
required,  under  the  penalty  of  the  payment  of  costs  in  a  subsequent 
action,  to  set  up  any  matters  of  counterclaim  that  may  be  properly 
pleaded.  Under  the  code  of  1852,  as  I  have  shown,  set-offs  and 
counterclaims  were  treated  rather  as  answers  than  causes  of  action  on 
the  part  of  the  defendant. 

It  was  provided,  therefore,  that  an  issue  of  fact  should  arise  upon 
a  set-off  or  counterclaim  presented  in  the  answer  and  denied  in  the  re- 

ply* 

There  was  no  provision  for  other  than  the  three  pleadings,  the 
complaint,  answer,  and  reply,  in  any  case,  and  under  the  code  there 
could  not  be  two  sets  of  pleading  where  there  was  a  counterclaim, 
as  there  was  no  provision  by  which  the  plaintiff  was  permitted  to  file 
an  answer  or  the  defendant  a  reply, 

Under  the  later  rulings  of  the  supreme  court,  to  the  effect  that  a 
counterclaim  was  not  a  defense,  but  a  cause  of  action  on  the  part  of 
defendant,  the  code  system  of  pleading  was  incomplete,  as  the  issue 
on  a  counterclaim  or  complaint  was  formed  by  a  reply. 

The  present  code  is  consistent  with  the  decided  cases.  It  is  pro- 
vided, as  I  have  shown  elsewhere,  that  "  the  pleading  to  a  coun- 
terclaim shall  be  an  answer  by  the  defendant  thereto,  and  a  reply  to 
new  matter  in  the  answer,  with  the  right  to  demur  to  any  of  them 
as  if  the  counterclaim  were  an  original  complaint."  e 

The  section  providing  how  issues  of  fact  arise,  has  amended  the  old 
code  by  striking  out  the  provision  that  an  issue  on  a  set-off  or  counter- 
claim should  be  presented  by  the  answer  and  reply.  The  provision 
that  an  issue  shall  arise  "  upon  a  material  allegation  in  the  complaint 
denied  by  the  answer,"  applies  to  a  complaint  by  the  defendant, 
pleaded  as  a  counterclaim  as  well  as  to  the  original  complaint.  The 
result  is  that  there  may  be  two  distinct  sets  of  pleadings  presenting 
separate  and  distinct  issues  to  be  tried  in  the  same  action.  There  is  no 
distinction  between  the  issues  made  upon  a  counterclaim  and  those 
arising  upon  the  original  complaint.  As  to  matters  of  set-off,  there 
is  no  provision  of  the  code  authorizing  an  answer  to  a  set-off.  While 
it  must  be  regarded  as  a  cause  of  action,  the  code  still  treats  it  as 
matter  that  must  be  pleaded  by  way  of  answer,  the  issue  thereon  to 
be  made  by  the  filing  of  a  reply/ 

With  these  different  modes  of  forming  an  issue  and  the  different  is- 
sues that  may  be  presented  upon  the  trial,  great  confusion  is  likely  to 
occur. 

(d)  2  R.  S.  1876,  p.  163,  §  318.  (f )  R.  S.  1881,  §§  347,  357. 

•      (e)  R.  S.  1881,  §  357;  ante,  §  683. 


484  THE   TRIAL.  [CHAP. 

732.  Order  in  which  issues  should  be  formed. — The  k<ues 
should  be  formed  iu  their  order  after  complaint  filed:    1.  By  answer  in 
abatement;    2.  By   demurrer  thereto;    3.  By  demurrer  to   the   com- 
plaint ;  4.  By  answer  thereto ;  5.  By  demurrer  to  the  answer  ;   6.  By 
reply  to  new  matter  in  the  answer ;  7.  By  demurrer  to  the  reply. 
Where  a  counterclaim  is  filed  the  course  of  pleading  should  be  the 
same.     The  issues  thus  formed  should  be  disposed  of  in  the  order  in 
which  they  occur. 

ISSUES    OF   LAW. 

733.  How  raised  and  tried. — Issues  of  law  arise  upon  demurrer 
to  the  complaint,  answer  or  reply.     An  issue  of  law  may  arise  upon 
a  demurrer  to  an  answer  in  abatement.     When  this  occurs  the  issue 
thus  formed  must  be  first  disposed  of.     No  issue-  of  law  can  properly 
be  raised  by  demurrer  to  the  complaint  where  the  defendant  desires  to 
plead  in  abatement.    Although  he  may  believe  the  complaint  to  be  de- 
fective, he  must  plead  in  abatement  first  and  demur  after  his  answer 
in  abatement  is  disposed  of,  either  by  demurrer  thereto  or  by  a  trial  upon 
the  issue  of  fact. 

Issues  of  law  must  be  tried  by  the  court.  They  must  be  de- 
termined from  the  facts  stated  in  the  pleading  demurred  to.  Where 
the  demurrer  is  sustained  the  party  is  entitled  to  leave  to  amend. 
If  amendment  is  made  to  the  pleading,  an  issue  of  law  may  again  be 
raised  by  a  demurrer,  or  an  issue  of  fact  by  answer.  If  the  party 
declines  to  amend,  and  there  is  no  other  pleading  by  the  same  party, 
judgment  must  be  taken  upon  the  demurrer.  If  there  are  other  plead- 
ings, the  party  may  reserve  an  exception  to  the  ruling  against  him 
on  the  demurrer,  and  the  cause  proceed  as  if  no  such  pleading  had 
been  filed.  Issues  of  law  should  first  be  disposed  of,  but  the  party  who 
demurs  may  waive  the  issue  of  law  by  pleading  over  or  going  to  trial 
on  an  issue  of  fact.g 

ISSUES   OF   FACT. 

734.  Raised  by  answer  and  reply. — But  three  pleadings  are 
necessary  under  the  code  to  form  all  of  the  issues  of  fact  that  can  arise 
in  a  cause.     The  answer  puts  in  issue  the  allegations  of  the  complaint, 
the  reply,  the  material  allegations  of  new  matter  in  the  answer,  and 
new  matter  in  the  reply  is  deemed  controverted  without  further  plead- 
ing. 

There  may,  however,  be  two  answers,  one  in  abatement  and  one  in 
bar,  upon  which  distinct  issues  may  be  formed ;  and  there  may  be 

(g)   Ante.  ??539,  540,  541. 


XIX. J  THE   TRIAL.  485 

several  paragraphs  of  the  different  pleadings,  each  of  which  is  in  effect 
u  separate  cause  of  action  or  defense,  and  upon  each  of  which  an  issue 
of  fact  may  arise. 

735. — By  answer  in  abatement  first  tried.— Where  an  answer 
in  abatement  is  filed  and  an  issue  raised  thereon,  the  issue  thus  formed 
must  be  tried  before  pleading  to  the  merits.11 

An  answer  in  abatement  may  be  filed  to  the  .defendant's  counterclaim 
under  the  present  code.  When  such  an  answer  is  filed,  no  further  ac- 
tion should  be  taken  until  the  issue  is  made  and  tried,  as  the  issues 
formed  upon  the  merits  on  both  the  original  complaint  and  the 
counterclaim  must  be  tried  together.  It  is  the  duty  of  the  party  plead- 
ing matter  in  abatement  to  see  that  the  issue  is  properly  raised  thereon 
and  tried  before  pleading  to  the  merits.  If  he  consents  to  go  to  trial, 
or  pleads  to  the  merits,  the  answer  in  abatement  is  waived. 

736.  May  be  waived. — Issues  should  arise  on  every  material  al- 
legation in  the  pleadings.  But  the  defendant,  upon  whose  pleading  the 
issue  should  be  formed,  must  require  the  filing  of  the  necessary  plead- 
ing by  the  opposite  party  at  the  proper  time.  If  this  is  not  done  the 
allegations  of  his  answer  will  be  deemed  controverted  as  by  a  general 
denial.' 

But  where  a  defendant  fails  to  file  an  answer  and  no  default  is  taken 
against  him,  but  he  appears  and  goes  to  trial,  his  failure  to  answer  is  a 
confession  of  the  allegations  of  the  complaint,  and  the  only  question  to 
be  determined  is  the  amount  due.  On  appeal  to  the  supreme  court  the 
defendant  can  not  complain  that  no  issue  was  formed.-* 

If  the  proper  motion  is  made  at  the  time  for  a  reply,  and  the 
plaintiff  fails  or  refuses  to  file  the  same,  the  defendant  is  entitled  to 
judgment  on  the  pleadings  without  a  trial. k 

Where  amended  pleadings  are  filed  they  take  the  place  of  the 
originals  and  the  issues  must  be  formed  upon  the  amended  pleadings. 
An  answer  or  reply  filed  to  the  original  can  not  raise  an  issue  upon  the 
allegations  of  the  amended  complaint  or  answer.1 

A  cause  may  be  tried  in  some  cases  without  any  pleading,  by  agree- 
ment of  the  parties ;  but,  in  such  case,  the  agreement  by  which  the 

(h)  Ante,  §  560;  R.  S.  1881,  §  36-5.  etc.,  Turnpike  Co.  v.  Roberts,  33  Ind. 

(i)  Ante,  §  693;  Shirts  v.  Irons,  28  246. 

Ind.  458;   Martindale  v.  Price,  14  Ind.  ( j)  Bender  v.  The  State,  26  Ind.  285. 

115;  ELenly  v.  Kern,  15  Ind.  391;  Da-  (k)  Preston  v.  Sandford's  Adm'r,  21 

vis  v.  Engler,  18  Ind.  312;  Ringle  v.  Ind.  156;    Train   v.  Gridley,  36   Ind. 

Bicknel!,  32  Ind.  369;    Sutherland  r.  241.  and  authorities  cited. 

Venard,  32  Ind.  483;    The   Harrison,  (1)   Ante,  §  711. 


486  THE   TRIAL.  [CHAP. 

cause  is  submitted  must  show  what  question  or  questions  the  court  is 
to  try.m 

The  statute  provides  for  an  agreed  case  Avhich  may  be  submitted  to 
the  court  upon  an  agreed  statement  of  facts,  and  an  affidavit  that  the 
controversy  is  real  and  in  good  faith,  to  determine  the  rights  of  the 
parties." 

It  is  held  that,  under  this  statute,  the  agreed  statement  of  the  facts 
must  show  a  cause  of  action  in  favor  of  one  of  the  parties  against  the 
other  or  there  is  nothing  for  the  court  to  try.0 

The  parties  may  agree,  also,  that  all  defenses  may  be  given  under 
the  general  denial  where  it  would  be  necessary,  without  such  agree- 
ment, that  some  of  the  matters  relied  upon  should  be  specially  pleaded. 
Where  this  is  done  the  parties  can  not  afterwards  complain  that  there 
was  a  trial  without  an  issue,  or  that  evidence  was  admitted  that  could 
only  be  competent  under  a  special  answer  or  reply. p 

It  has  been  held  that  under  an  agreement  that  "  all  evidence  may  be 
given  under  the  general  denial,"  matter  of  set-off  might  be  proved,  not 
only  to  the  extent  of  the  plaintiff's  demand,  but  to  the  extent  of  any 
balance  that  might  be  shown  to  be  due  him."  q 

Matter  that  would  otherwise  have  to  be  pleaded  under  oath  may  be 
proved  under  the  agreement. r 

WHEN   CAUSE   MAY   BE   CALLED    FOR  TRIAL. 

737.  At  first  term  ;  exception. — Formerly  the  summons  must  be 
made  returnable  at  the  next  term  after  it  was  issued,  and  could  not  be 
made  returnable  during  the  term.  The  code  of  1852  was  so  amended 
as  to  authorize  the  return  of  the  summons  during  the  term.  Under 
the  present  code  a  day  in  the  term  may  be  fixed  for  the  return  of  the 
summons  by  indorsement  on  the  complaint,  and  the  day  fixed  must  be 
stated  in  the  summons,  and  publication  may  be  made  in  case  of  non- 
resident defendants  for  the  day  indorsed  on  the  complaint.  When  no 
time  is  fixed  by  indorsement  on  the  complaint  the  cause  stands  for 
issue  and  trial  at  the  next  term.  If  fixed  by  such  indorsement,  and 
the  summons  is  made  returnable  on  that  day  and  served  ten  days, 
or  notice  by  publication  for  that  day  has  been  given  three  week? 

(m)  Christ  v.  Christ.    8    Blkf.  574;  (o)  Gregory  v.  Perdue,  29  Ind.  66; 

Swift  v.  Hetfield,  4  Ind.  623.  post,  §  813. 

(n)  R.  S.  1881,  I  553;    ante,  §  249;  (p)  Talcott  v.  Jackson,  41  Ind.  201. 

post,  §§811,  812;  Manchester  v.  Dodge,  (q)  Talcott  v.  Jackson,  41  Ind.  201. 

57  Ind.  584;  Sharpe  v.  Sharpe's  Adm'r,  (r)  Allison,  President  of  the  Bank 

27   Ind.   507;    Godfrey   v.  Wilson,  70  of  Gosport,  r.  Hubbell,  17  Ind.  559. 
Ind.  50. 


XIX.  J  THE   TRIAL.  487 

and  thirty  days  before  such  day,  the  cause  may  then  be  called  for  issue 
and  trial.  When  it  is  found  after  the  filing  of  the  complaint  that  any 
party  to  the  action  has  not  been  properly  served  with  process,  the  in- 
dorsement may  then  be  made  and  summons  issued,  or  publication 
made  for  the  day  named:8 

A  cause  may  be  called  for  issues  on  the  day  the  summons  is  made  re- 
turnable, or  notice  given  not  earlier,  however,  than  the  second  day  of 
the  term.1 

It  may  be  called  for  trial  on  the  day  it  is  set  down  for  trial  on  the 
docket,  if  at  issue,  or  any  day  in  the  term  thereafter.  Causes  must  be 
called  for  trial  in  the  order  in  which  they  stand  on  the  docket,  unless 
the  court,  for  good  cause  shown,  shall  direct  otherwise." 

It  has  been  held  that  the  court  has  some  discretion  as  to  the  order  in 
which  causes  shall  be  tried,  and,  therefore,  the  supreme  court  will  pre- 
sume, where  a  cause  is  tried  out  of  its  order,  that  it  was  done  upon 
good  cause  shown. v 

CONTINUANCE. 

738.  Generally. — A  cause  may  be  continued  by  agreement  of  the 
parties  and  the  consent  of  the  court.  If  consent  is  not  given  by  either 
party,  the  opposite  party  must  show  sufficient  cause  for  a  continuance, 
be  forced  to  trial,  or  suffer  judgment  to  be  taken  against  him.  A 
general  power  is  given  the  court  to  continue  a  cause  at  any  stage  of 
the  proceedings  "  for  good  cause  shown."w 

The  causes  are  not  named,  except  in  case  of  absent  evidence,  and  the 
right  to  a  continuance  for  other  causes  must  be  very  much  within  the 
discretion  of  the  court. 

This  is  a  discretion  that  may  be  reviewed  in  the  supreme  court. x 
The  presumption  is  in  favor  of  the  action  of  the  court  below. y 

A  cause  will  not  be  reversed,  except  where  it  clearly  appears  that  the 

discretion  of  the  court  has  been  abused.2 

• 

(s)  R.  S.  1881,  I  516.  2  Blkf.  286;  Graves  v.  Rayle,  19  Ind. 

(t)  R.  S.  1881,  ?  400;  ante,  §  448.  83,  and  note;  Dutton  v.  The  State,  5 

(u)  R.  S.  1881,  §400.  Ind.  533;  Vanblaricum  v.  Ward,  1 

(v)  French  v.  Howard,  14  Ind.  455;  Blkf.  50;  Wassels  v.  The  State,  2»5 

Bradley  v.  Bradley,  45  Ind.  67.  Ind.  30;  Knowlton  v.  Smith,  17  Ind. 

(w)  R.  S.  1881,  §411-  508;  Hurt  v.  The  State,  26  Ind.  106; 

(x)  Mitchell  v.  Stevens,  23  Ind.  466;  Binns  v.  The  State,  38  Ind.  277;  Bar- 

Kenton  v.  Spencer,  6  Ind.  321 ;  Mere-  tel  v.  Tieman,  55  Ind.  438. 

dith  v.  Lackey,  14  Ind.  529;  Detro  v.  (y)  Pate  v.  Tait,  72  Ind.  450. 

The  State,  4  Ind.  200;  Spence  v.  The  (z)  Whitehall  v.  Lane,  61  Ind.  93. 

State,  8  Blkf.  281 ;  Gordon  v.  Spencer, 


488  THE    TRIAL.  [CHAP. 

739.  Absence  of  evidence. — A  continuance,  because  of  the  ab- 
sence of  evidence,  can  only  be  granted,  if  objected  to  by  the  opposite 
party,  upon  a  proper  showing  by  affidavit.     In  the  case  of  an  absent 
witness,  the  statute  provides  what  the  affidavit  shall  show: 

First.  That  the  evidence  expected  to  be  obtained  is  material. 

Second.  The  facts  showing  that  due  diligence  has  been  used  to  ob- 
tain it. 

TJiird.  Where  the  evidence  may  be. 

Fourth.  The  name  and  residence  of  the  witness,  if  known. 

Fifth.  The  probability  of  procuring  his  testimony  within  a  reason- 
able time. 

Sixth.  That  his  absence  has  not  been  procured  by  the  act  or  conni- 
vance of  the  party,  nor  by  others  at  his  request,  nor  with  his  knowl- 
edge and  consent.* 

Seventh.  What  facts  he  believes  the  witness  will  testify  to. 

Eighth.  That  he  believes  the  facts  to  be  true. 

Ninth.  That  he  is  unable  to  prove  such  facts  by  any  other  witness, 
whose  testimony  can  be  as  readily  procured.** 

The  first  three  of  the  above  requirements  apply  to  documentary  ev- 
idence, as  well  as  to  the  testimony  of  witnesses.  (1) 

740.  Evidence  must  be  material. — It  is  not  necessary  that  the 
affidavit  should  contain  a  statement  that  the  evidence  is  material.    This 
can  be,  and  in  most  cases  must  be,  determined  from  the  evidence  as  it 
is  set  out  in  the  affidavit.     The  issues  are  made,  and  the  court  can  de- 
termine whether  or  not  the  evidence  is  material.     But  it  must  appear, 
either  by  a  direct  averment,  or  by  the  evidence,  as  stated,  that  it  is 
material.0 

741.  Must  show  due  diligence. — The  affidavit  must  show  that 
the  party  has  used  due  diligence  to  procure  the  absent  evidence.     It  is 
not  sufficient  to  state,  in  general  terms,  that  due  diligence  has  been 
used.     The  facts  must  be  set  out  from  which  it  will  appear.*1 

(a)  Beavers   v.  The   State,  58   Ind.  5  Blkf.  598;  Nixon  v.  Drown.  3   Blkf. 
530.  504;  Gordon  v.  Spencer.  '2  Blkf.  280; 

(b)  K.  S.  1881,  $410]  Vol.  3,  p.  547.  The   Terre   Haute,  etc..  II.  R.    Co.  v. 

(c)  Griffith    v.    The   State,    12   Ind.  Norman,    22     Ind.    63;     Kmmons    r. 
548;   Detro  v.  The  State,  4  Ind.  200;  Meeker,  55  Ind.  321;  Beavers  v.  The 
Hubbard  v.  The  State,  7  Ind.  160;  Bird  Stale,  58  Ind.  530. 

v.  McElvaine,  10  Ind.  40;  Gross  v.  The         (d)  Pence  v.  Christman,  15  Ind.  257  ; 
State,  2  Ind.  135;  Woods  v.  Anderson,     Huttst>.Shoaf,881nd.395;  Vol.3,  p.  547. 

(1)  Form  of  affidavit,  Vol.  p.  3,  p.  547. 


XIX.]  THE    TRIAL.  489 

What  will  amount  to  due  diligence,  as  it  must  be  stated  in  the  affi- 
davit, will  be  fouud  decided  in  the  cases  cited  in  the  foot-note.8 

The  question,  whether  the  party  has  used  the  proper  diligence  or 
not,  must  depend  so  much  upon  the  facts  and  circumstances  of  each 
case  that  no  rule  can  be  laid  down  on  the  subject. 

742.  The  name  and  residence  of  the  witness. — The  affidavit 
must  show  where  the  absent  witness  resides,  if  his  residence  is  known. f 

It  is  not  a  sufficient  excuse  for  a  failure  to  give  the  residence  of  the 
witness  to  state  that  his  residence  is  unknown.  It  must  be  shown  that 
due  diligence  has  been  used  to  ascertain  his  place  of  residence.8 

The  same  rule  applies  to  the  requirement  that  the  name  of  the  wit- 
ness shall  be  given,  if  known.  By  the  earlier  statute,  the  name  of  the 
witness  was  not  required  to  be  given. h 

743.  Probability  of  procuring  the  testimony. — The  affidavit 
must  not  only  show  that  the  evidence  can  not  be  procured  at  the  pres- 
ent time,  but  it  must  show,  iu  addition,  a  reasonable  probability  of 
procuring  the  evidence  within  a  reasonable  time.1 

It  is  held  that  it  is  not  sufficient  to  state,  in  general  terms,  that  the 
evidence  may  be  procured  where  the  facts  stated  show  that  there  is  no 
such  probability^ 

• 

744.  That  the  facts  can  not  be  proved  by  any  other  wit- 
ness.— It  is  necessary  that  the  affidavit  should  state  that  the  same 
facts  can  not  be  proved  by  any  other  witness,  whose  testimony  can  be 
as  readily  procured.     But  it  has  been  held  that,  although  the  party 
may  have  knowledge  of  the  facts,  and  is  competent  to  testify  as  a  wit- 
ness, he  is  entitled  to  a  continuance  for  the  testimony  of  a  disinterested 
witness.k 

745.  The  facts  to  which  he  believes  the  witness  will  tes- 

(e)  Hall"  v.  The   State,  8  Ind.  439;  Ind.  239;    Osborn   v.  Storms,  65  Ind. 

Deming    v.   Patterson,   10    Irid.   251;  321;    Deming   v.   Ferry,  8   Ind.  418; 

Mugg  v.  Grave.*,  22  Ind.  230;   Yater  r.  Hutts  v.  Schoaf,  88  Ind.  3'.io. 

Mullen,   23    Ind.   5G2;    McKinley    v.  (f)  Beavers  v.  The  State,  58  Ind.  530. 

Shank,  24  Tnd.  258;   Ward  v.  Culyhan,  (g)   Hall  v.  The   State,  8  Ind.  430; 

30  Ind.  395;    Miller  r.  The  State,  42  McKinlay  v.  Shank,  24  Ind.  258. 

Ind.  544;    Wolcott   r.   Mack,  53  Ind.  (h)  2  R.  S.  1876,  p.  164,  ?  322. 

209;    Briggs  v.  Garner,    54    Ind.  572;  (i)  Hall  v.  The  State,  8  Ind.  439. 

Leary  r.  Nave,  G6  Ind.  220;  Kirland  (j)  The  Ohio  and  Mississippi  R.  R. 

r.  Kline,  16  Ind.  313;   Murphy  v.  The  Co.  r.  Dickerson,  59  Ir.d.  317;   Deming 

State,  6  Ind.  490;  Lane  v.  The  State,  v.  Patterson,  10  Ind.  251. 

27   Ind.   108-;    Brown   v.  Shearon,    17  (k)  Fox  r.  Reynolds,  24  Ind  46. 


490  THE    TRIAL.  [CHAP. 

tify,  and  that  he  believes  them  to  be  true. — The  statute  re- 
quires that  the  affidavit  shall  show  the  facts  "  he  believes  the  witness 
will  testify  to." ' 

It  is  important  to  the  party  making  the  application  for  a  continu- 
ance that  this  requirement  of  the  statute  is  fully  complied  with.  For 
his  own  benefit  he  should  state  the  facts  fully.  The  opposite  party 
may  deprive  him  of  the  continuance  by  admitting  that  the  witness  will 
testify  to  the  facts  set  out  in  the  affidavit. m 

If  the  facts  are  not  fully  set  out  the  party  may  lose  the  benefit  of 
important  testimony,  as  he  can  only  use  such  facts  as  are  stated  in  the 
affidavit,  no  matter  what  other  facts  might  be  proved  by  the  witness. 
It  is  not  unusual  for  a  party  to  set  out  in  his  affidavit  sufficient  facts 
only  to  entitle  him  to  a  continuance,  with  a  view  to  withhold  from  the 
other  party  a  knowledge  of  his  evidence,  but  this  is  a  dangerous  prac- 
tice. 

The  party  making  the  affidavit  must  swear  that  he  believes  the  facts 
stated  to  be  true." 

746.  Competency  of  the  witness. — It  has  been  held  by  the  su- 
preme court  that  an  affidavit  for  a  continuance  must  show  that  the  ab- 
sent witness  is  competent.0  The  statute  does  not  require  that  the  com- 
petency of  the  witness  shall  be  shown.  It  is  not  a  matter  that  is 
always  easy  to  determine,  and  the  party  making  the  affidavit  should 
not  be  compelled  to  determine,  under  oath,  a  legal  question  that  may 
arise  on  the  trial  of  the  cause.  It  is  evident,  however,  that  the  adverse 
party,  by  making  the  admission  that  the  party  will  testify  to  the  facts, 
should  not  waive  the  right  to  object  to  the  admission  of  the  evidence, 
on  the  trial,  on  the  ground  that  the  witness  is  incompetent.  Where 
the  facts  stated  in  the  affidavit  disclose  the  incompetency  of  the  wit- 
ness to  testify  to  the  matters  set  out  therein,  it  will  be  insufficient. p 

The  question  whether  the  continuance  should  be  granted  or  not  must 
be  determined  from  the  affidavit  alone. q 

No  counter  affidavits  are  allowed.  Therefore  it  can  not  be  shown 
by  other  means  that  the  witness  is  not  competent.  But  where  there 
is  nothing  to  show  the  incompetency  of  the  witness,  and  the  statute 
does  not  require  a  showing  that  he  is  competent,  the  court  must  pre- 
sume it  for  the  purposes  of  the  application  for  a  continuance. 

When  the  admission  is  made,  and  the  evidence  is  offered  at  the  trial, 

(1)  French    v.    Blanchard,   16    Ind.         (o)  French    v.    Blanchard,    16   Ind. 
143;  Jones  v.  The  State,  11  Ind.  357;     143. 
Fleming  v.  The  State,  11  Ind.  234.  (p)  Jacobs  v.  Finkle,  7    Blkf.  432; 

(m)  Post,  ?  747.  Carthage  Tp.  Co.  v.  Andrews,  102  Ind. 

(n)  Fausett  v.  Voss,  12  Ind.  525.  138. 

(q)  Cutler  v.  The  State,  42  Ind.  244. 


XIX.]  THE   TltlAL.  491 

the  adverse  party  should  be  permitted  to  object  to  the  evidence  ou  the 
ground  of  the  incompetency  of  the  witness,  and  if  the  witness  is  not 
competent  the  evidence  should  be  excluded. 

747.  If  opposite  party  will  admit  that  the  witness  will 
testify  to  the  facts,  or  if  it  is  documentary  evidence  that  it 
is  true,  continuance  will  not  be  granted. — The  court  can  not 
postpone  the  trial  if  the  adverse  party  will  consent  that  the  evidence, 
if  documentary,  shall  be  taken  as  true,  or  that  the  witness  will  testify 
to  the  facts  stated  in  the  affidavit/ 

In  criminal  cases  the  state  must  admit  that  the  facts  it  is  believed 
the  witness  will  testify  to  are  true.9 

But  in  civil  cases  the  adverse  party  is  only  required  to  admit  that 
the  witness  will  testify  to  the  facts  as  true.'  The  statute  reserves  to 
the  party  making  the  admission  the  right  to  impeach  the  absent  wit- 
ness, the  same  as  if  he  were  present  and  testified  to  the  facts. 

The  adverse  party  can  not  be  required  to  admit  that  the  witness  will 
testify  to  facts  that  are  immaterial,  or  to  mere  conclusions,  although 
they  are  stated  in  the  affidavit.  The  question  should  be  determined 
at  the  time  the  admission  is  to  be  made  what  facts  are  material,  and 
the  admission  should  only  go  to  those  facts." 

The  manner  of  presenting  the  facts  upon  the  trial  is  not  provided 
for  by  statute,  and  the  practice  in  this  respect  is  not  well  settled.  The 
better  practice  would  seem  to  be  to  read,  not  the  entire  affidavit  as  evi- 
dence, but  the  facts  set  out,  or  such  of  the  facts  as  have  been  held  to 
be  material  and  competent  evidence,  and  this  should  be  accompanied 
by  the  admission  of  the  adverse  party  that  the  witness  named  would, 
if  present,  testify  to  the  facts  as  true. 

748.  On  account  of  the  absence  of  a  party. — The  statute 
does  not  provide  what  shall  be  shown  to  authorize  a  continuance  on  ac- 
count of  the  absence  of  a-  party  to  the  action.     Where  the  only 
reason  shown  is  that  his  presence  is  necessary  as  a  witness  the  same 
affidavit  should  be  made  as  in  the  case  of  another  witness,  except  that 
the  same  diligence  in  having  him  subpoenaed  need  not  be  shown.    While 
diligence  in  subpoenaing  a  party  is  not  necessary  the  affidavit  must  show 
that  he  has  used  the  proper  diligence  to  be  present  at  the  trial.7 

(r)  R.  S.  1881,  §410.  (u)  AVheeler   v.    The   State,  8    Ind. 

(s)  R.  8.  1881,  §  1781;    Wheeler  v.  113;  Carmon  v.  The  State,  18  Ind.  450. 

The  State,  8  Ind.  113;  Carmon  v.  The  (v)  Yater.  v.  Mullen,   23   Ind.  562, 

State,   18    Ind.   450;    Was?«'l   r.    The  566;     Davis   v.    Luark,   34   Ind.   403; 

State,  26  Ind.  30.  Montgomery  v.  Wilson,  58  Ind.  591. 

(t)  Uawson    v.   Hemphill.   50    Ind. 
422;  Whitehall  v.  Lano,  61  Ind.  93. 


492  THE   TRIAL.  [CHAP. 

Where  the  application  is  made  by  one  party  on  account  of  the  ab- 
sence of  a  co-plaintiff  or  co-defendant,  the  affidavit  must  show  that  due 
diligence  has  been  used  to  procure  his  testimony. w 

In  addition  to  the  right  of  a  party  to  testify  in  his  own  behalf,  it  is 
his  right  to  be  present  at  the  trial.  In  many  cases  this  privilege  is  a 
matter  of  importance,  and  where  the  affidavit  shows  a  necessity  for  the 
presence  of  the  party  in  court  and  a  probability  that  he  can  be  present 
within  a  reasonable  time,  together  with  the  showing  of  a  sufficient  ex- 
cuse for  his  absence,  a  continuance  should  be  granted  under  the  gen- 
eral power  given  the  court  to  grant  a 'continuance  "  for  good  cause 
shown,"  although  his  testimony  may  not  be  material  or  he  may  not  be 
competent  to  testify.1 

Where  a  witness  is  absent,  the  affidavit  need  not  show  the  reason 
for  his  absence,3"  but  where  the  application  is  based  upon  the  absence 
of  the  party  asking  for  the  continuance,  sufficient  reason  for  his  absence 
must  be  shown. 

• 

749.  On  account  of  the  absence  of  an  attorney. — Cases  may 

arise  where  the  absence  of  an  attorney  is  sufficient  ground  for  a  contin- 
uance, and  when  such  a  case  is  presented  the  court  has  the  power  to 
grant  the  continuance,  and  the  power  should  be  exercised.  It  must 
appear  from  the  affidavit  that  the  party  has  used  the  proper  diligence 
to  have  the  attorney  present,  and  that  he  will  be  prejudiced  by  being 
compelled  to  go  to  trial  in  his  absence.2 

An  affidavit  may  be  sufficient  to  postpone  the  trial  to  a  later  day  in 
the  term  that  would  be  insufficient  to  warrant  a  continuance  until  an- 
other term.8 

750.  Who  may  make  affidavit. — The  statute  does  not  require 
that  the  affidavit  for  a  continuance  shall  be  made  by  the  party,  and  it 
has  been  held  that  it  may  be  made  by  his  attorney  or  agent,  without 
in  any  way  accounting  for  the  absence  of  the  party.b 

751.  On  suppression  of  depositions  or  filing  same  too  late. 
— Where  a  party  has  taken  the  deposition  of  a  witness,  his  testimony 
being  material,  and  the  deposition  is  suppressed,  he  is  entitled  to  a 
continuance  almost  as  of  course.0 

(w)  Lane  v.  The  State,  27  Ind.  108.  v.  Belck,  97  Ind.  73;  Eslinger  v.  East, 

(x)  Graves    v.   Rayl,    19    Ind.    83;  100  Ind.  434;   Vol.  3,  p.  547. 

Montgomery  v.  Wilson,  58  Ind.  591;  (a)  Hubbard   v.  The  State,   7   Ind. 

Pate  v.  Tait,  72  Ind.  450.  160. 

(y)  Cutler  v.  The  State,  42  Ind.  244.  (b)  Espy  v.  The. State  Bank,  5  Ind. 

(z)  Whitehall  v.  Lane,  61  Ind.  93;  274;  Abbott  v.  Zeigler,  9  Ind.  511. 

Bartel  v.  Tieman,  55  Ind.  438;  Belck  (c)  Carpenter  v.  Dame,  10  Ind.  125. 


XIX.]  THE   TRIAL.  493 

It  is  provided  by  statute  that  depositions  intended  to  be  read  in 
evidence  must  be  filed  in  court  at  least  one  day  before  the  time  at 
which  the  case  in  which  such  deposition  is  to  be  used  stands  on  the 
docket  for  trial,  and  if  filed  afterwards  and  claimed  to  be  used  on  the 
trial  the  adverse  party  shall  be  entitled  to  a  continuance  upon  showing 
good  cause  by  affidavit.*1 

In  order  to  entitle  a  party  to  a  continuance,  under  this  section,  he 
must  show  by  affidavit  that  he  has  been  prejudiced  by  the  filing  of 
the  deposition  after  the  time  fixed  by  the  statute,  in  such  manner  that 
he  is  not  prepared  for  trial. 

752.  Second  application  during  same  term. — There  is  no  stat- 
utory provision  against  a  second  application  for  a  continuance,  during 
the  same  term,  but  it  is  the  duty  of  the  party  in  making  his  first  ap- 
plication to  state  all  of  the  causes  that  exist  at  the  time  ;  and  where  a 
second  application  is  made  it  is  necessary,  if  the  cause  existed  when 
the  first  affidavit  was  filed,  that  the  second  affidavit  should  show  a  suf- 
ficient excuse  for  not-having  included  it  in  the  first. e 

753.  Affidavit  may  be  amended. — Where  an  affidavit  has  been 
presented,  and   passed  upon,  it   may  be  amended  with  leave  of  the 
court.     The  court  is  not  bound  to  grant  leave  to  amend,  but  may  do 
so  in  its  discretion. 

It  has  been  held  that  there  is  no  rule  of  practice  authorizing  the 
court  to  allow  a  party  to  amend  an  affidavit  after  the  motion  has  been 
decided/ 

It  may  be  said,  also,  that  there  is  no  rule  of  practice  against  the 
court  exercising  such  right.  As  the  court  has  power  to  grant  a  con- 
tinuance at  any  stage  of  the  cause  for  good  cause  shown,  and  a  second 
application  is  allowed,  no  good  reason  can  be  assigned  why  the  court 
should  not,  in  a  proper  case,  permit  the  amendment  to  avoid  injustice. 
It  is  clearly  a  matter  within  the  discretion  of  the  court.  A  refusal  to 
permit  the  amendment  is  not  a  cause  for  reversal  in  the  supreme  court.15 

754.  For  process. — The  plaintiff  is  entitled  to  have  all  the  de- 
fendants before  the  court  before  proceeding  with  the  cause.     He  should 
require  this,  however,  before  making  up  the  issues  as  between  him  and 
the  defendants  served.     Otherwise,  he  is  not  entitled  to  a  continuance, 
when  the  cause  is  called  for  trial,  for  service  of  process  on  the  defend- 
ants not  served.1' 

(d)   H.  S.  1881,  §  436.  (g)  Pence  v.  Christman,  1">  ln<l.  207. 

(ei  ShnttiH-k  »•.  Myers,  13  Ind.  46.  (h)  Sumnerw.  Coleman,  20  Ind.  486. 

(t)   Driskill  r.  The  State,  7  Ind.  338. 


494  THE   TRIAL.  [CHAP. 

The  fact  that  part  only  of  the  defendants  have  been  served  with  pro- 
cess is  no  cause  for  a  continuance  by  the  defendants  that  are  before  the 
court.  The  plaintiff  may  continue  or  not  at  his  option.' 

755.  For  answers  to  interrogatories. — Ordinarily  the  failure 
of  the  adverse  party  to  answer  interrogatories  is  not  cause  for  a  con- 
tinuance.-* 

The  statute  provides  that,  in  the  absence  of  the -opposite  party, 
the  filing  of  the  interrogatories  shall  not  work  a  continuance  of  the 
cause  unless  it  be  shown  to  the  court,  by  affidavit,  that  the  party 
who  files  such  interrogatories  expects  to  elicit  facts  by  the  answer 
material  to  him  on  the  trial,  that  he  believes  said  facts  to  be  true,  that 
he  can  not  prove  the  same  by  any  witness,  and  that  he  files  the  inter- 
rogatories not  for  delay  merely,  but  to  obtain  substantial  justice  at  the 
trial.k 

The  affidavit  need  not  show  that  the  party  can  probably  procure  the 
testimony.1 

756.  Defendant  constructively  summoned. — "Sec. .386.   A 
T,  m<-    defendant  constructively  summoned  shall  be  allowed,  at  any  time  be- 
el ty  fa* •  fore  judgment,  to  appear  and  defend  the  action ;  and,  upon  a  substan- 
tial defense  being  disclosed,  time  may  be  given,  on  reasonable  terms, 
to  prepare  for  trial.'"" 

TRIAL  BY  JURY. 

757.  Number   of  jurors. — "Sec.    521.   The  number  of  jurors 
to  try  a  civil  action  shall  not  exceed  twelve  nor  be  less  than  three. 
The   parties   may  determine  the   number  of  jurors  by  agreement, 
and  in  case  of  their  disagreement  the  number  shall  be  twelve."  n 

HOW   SELECTED. 

758.  Regular  panel. — The  manner  of  selecting  jurors  has  been 
greatly  changed  by  a  recent  statute.     Jury  commissioners,  two  in 
number,  "  freeholders  and  voters  of  the  county,  well  known  to  be  of 
opposite  politics,  and  of  good  character  for  intelligence,  morality  and 
integrity,"  are  required  to  be  appointed  by  the  circuit  court  at  the  last 

(i)   Ante,  §  443  et  seq.  Lackey,    14    Ind.    529;    Meredith    v. 

(j)   Rice  v.  Derby,  7  Ind.  649;  Lent  Lackey,  16  Ind.  1. 

r.  Knott,   7   Ind.  230;    Swift   v.  Ells-  (1)  Barnard  v.  Flinn,  8  Ind.  204,  208. 

worth,  10  Ind.  205.  (m)  E.  S.  1881,  §  386. 

(k)  R.   S.   1881,   §  359;    Boswell   r.  (n)  R.  S.  1881,  §  521. 
Travis,    12    Ind.    524;     Meredith    v. 


XIX. j  THE   TRIAL.  495 

term  of  the  court  in  each  year.0  The  manner  of  selecting  jurors  is 
provided  for  in  the  same  act : 

"  Sec.  1386.  Said  commissioners  shall  immediately,  from  the  names 
of  legal  voters  and  citizens  of  the  United  States  on  the  tax  duplicate 
of  the  county  for  the  current  year,  proceed  to  select  and  deposit  in  a 
box,  furnished  by  the  clerk  for  that  purpose,  the  names,  written  on 
separate  slips  of  paper,  of  uniform  shape,  size  and  color,  of  twice  as 
many  persons  as  will  be  required  by  law  for  grand  and  petit  jurors  in 
the  courts  of  the  county,  for  all  the  terms  of  guch  courts,  to  commence 
within  the  calendar  year  next  ensuing.  Such  selection  shall  be  made 
as  nearly  as  may  be  in  equal  numbers  from  each  county  commissioner's 
district.  In  making  such  selections  they  shall  in  all  things  observe 
their  oath,  and  they  shall  not  select  the  name  of  any  person  who  is  not 
a  voter  of  the  county,  or  who  is  not  either  a  freeholder  or  householder, 
or  who  is  to  them  known  to  be  interested  in  or  has  a  cause  pending 
which  may  be  tried  by  a  jury  to  be  drawn  from  the  names  so  selected. "p 

The  statute  further  provides  for  the  delivery  of  the  box  containing 
the  names  of  such  jurors  to  the  clerk  of  the  court,  who  shall  within  a 
period  of  not  more  than  one  week  preceding  any  term  of  court,  draw 
therefrom  twelve  names  of  persons  for  petit  jurors,  and  shall  record 
and  certify  such  drawing  on  the  proper  order-book  of  the  court,  and 
shall  issue  a  venire  for  the  persons  so  drawn. q 

The  jurors  thus  selected  compose  the  regular  panel. 

759.  Special  venire. — Where  it  becomes  necessary,  by  reason  of 
numerous  challenges  in  any  cause,  the  court  may  order  the  clerk  to 
issue  a  special  venire  for  such  number  of  jurors  as  may  be  deemed 
necessary. 

The  names  must  be  drawn  from  the  box  deposited  with  the  clerk, 
and  when  the  names  deposited  in  the  box  are  exhausted,  the  court  may 
order  the  jury  commissioners  to  select  other  names  in  the  manner  pro- 
vided by  the  statute.' 

760.  Special  jury. — A  jury  may  be  agreed  upon  by  the  parties, 
and  when  the  names  are  furnished,  the  court  may  order  the  sheriff  to 
impanel  such  special  jury,  if  it  can  be  done  without  unreasonable  delay 
of  the  cause.8 

The  statute  authorizing  a  special  jury  is  of  very  little  importance,  as 
it  is  rarely,  if  ever,  resorted  to  in  practice.  The  parties  may,  however, 

(o)  R.  S.  1881,  §  1385.  (r)  R.  S.  1881,  §  1388. 

(p)  R.  S.  1881,  §  1386.  (s)  R.  S.  1881,  §  523. 

(q)  R.  S.  1881.  §§1386,  1387. 


496  THE   TRIAL.  [CHA.P. 

select  their  own  jury,  consisting  of  the  proper  number,  and  it  is  the 
duty  of  the  court  to  order  them  impaneled  if  it  can  be  done  without 
unreasonable  delay. 

761.  Struck  jury. — The  statute  provides  that  where  both  parties 
desire  it  the  court  may  direct  the  sheriff  to  summon  eighteen  compe- 
tent jurors  or  a  less  number,  and  each  party,  the  plaintiff  first  and 
then  the  defendant,  may  strike  off  one  juror  in  turn  from  the  num- 
ber until  each  has  struck  off  six  or  more.     The  parties  may,  if  they 
consent,   upon   being  furnished  with  the  names,  strike  off  before  the 
jurors  are  summoned,  and  only  the  remaining  persons  shall  be  summoned.1 

This  would  make  the  jury  to  consist  of  not  more  than  six. 

Where  a  struck  jury  is  deemed  necessary  it  may  be  demanded 
by  either  party.  The  manner  of  selecting  such  jury  is  provided  by 
statute.0 

The  demand  therefor  must  be  filed  with  the  clerk,  and  four  days  no- 
tice must  be  given  by  him  to  the  parties  or  their  attorneys  of  the  time 
of  striking  the  same.  Forty  persons,  competent  to  serve  as  jurors, 
must  be  selected  by  the  clerk.  The  party  demanding  the  jury  shall 
strike  off  first,  and  then  the  other  party,  and  so  on,  alternately,  until 
each  shall  have  struck  off  twelve. 

If  either  party  fails  to  attend  in  person  or  by  attorney  the  clerk 
must  strike  off  for  him.  The  jury  must  be  stricken  at  least  five  days 
before  the  day  the  cause  is  set  for  trial.  The  sixteen  jurors  remaining 
must  be  summoned  as  the  jury,  and  they  must  be  called  as  their  names 
appear  on  the  panel,  and  the  first  twelve,  if  not  challenged  for  cause 
or  set  aside  by  the  court,  shall  constitute  the  jury.  If  any  are  chal- 
lenged or  s^t  aside,  the  others  selected  should  be  called  in  their  order 
until  the  proper  number  is  secured.  If  less  than  half  of  the  struck 
jury  shall  have  been  summoned,  and  shall  be  in  attendance,  the  cause 
must  be  tried  by  the  regular  panel.  If  the  clerk  is  interested,  in  such 
way  as  to  make  it  improper  for  him  to  select  the  jurors,  the  court  may 
appoint  some  judicious  and  disinterested  person  for  that  purpose." 

762.  Talesmen. — "  Sec.  532.  When  the  regular  panel  is  exhausted, 
or  is  insufficient  from  any  cause,  the  sheriff  shall  call  the  bystanders 
or  fill  the  jury  in  such  a  manner  as  the  court  may  direct."  w 

It  has  been  held  that,  under  this  section  of  the  statute,  bystanders 
may  be  called  when  the  regular  panel  is  engaged  in  the  trial  of  another 
cause. x 

(t)  K.  S.  1881,  §  524.  (w)  R.  S.  1881,  g  532. 

(u)  R.  S.  1881,  §  525.  (x)  Bradley    v.    Bradley,    45    Ind. 

(v)  rf*S.  1881,  §526.  67,  71. 


THE    TRIAL.  497 

It  was  held  that  in  a  criminal  cause  bystanders  could  not  be  called 
under  such  circumstances. y 

But  it  was  otherwise  under  a  later  statute.2 

The  present  criminal  code  provides  that  "  the  petit  or  trial  jury  used 
in  civil  cases  shall  act  also  in  criminal  cases."* 

Tli is  must  apply  to  the  regular  panel.  The  same  provision  for 
calling  a  jury  by  the  sheriff  in  criminal  cases,  under  which  the  supreme 
court  held  bystanders  could  not  be  called  when  the  regular  panel  was 
engaged  in  the  trial  of  another  cause,  is  retained  in  the  present  criminal 
code.b 

But  the  act  of  1873,  under  which  it  was  held  that  a  special  jury 
might  be  called  to  try  a  particular  cause,  when  the  business  of  the 
court  required  it,  is  now  a  part  of  the  civil  code.  The  provision  is 
made  applicable,  however,  to  all  causes,  civil  and  criminal.0 

Whero  the  proper  officers  have  failed  to  select  a  jury,  or  for  any 
other  reason  the  jury  is  not  present,  the  regular  panel  may  be  selected 
from  the  bystanders.*1 

763.  Qualification  of  jurors. — "To  be  qualified  as  a  juror,  a 
person  must  be  a  resident  voter  of  the  county,  and  a  freeholder  or 
householder."6 

It  is  not  necessary  that  a  juror  should  be  a  freeholder  and  a  house- 
holder; neither  is  a  necessary  qualification  where  the  other  exists. 
But  a  person  that  is  neither  a  freeholder  nor  a  householder  is  incom- 
petent/ 

It  is  held  in  some  of  fhe  earlier  cases  that  a  freeholder  merely  was 
not  competent.  He  must  be  a  householder^ 

But  this  was  under  a  statute  requiring  that  a  juror  should  be  a 
householder. 

The  juror,  to  be  competent,  must  be  a  resident  voter  of  the  county. 

A  householder  is  "  the  head  of  a  family  occupying  a  house. "h 

These  are  the  only  qualifications  expressly  required  by  statute.    The 

(y)  Rogers  v.  The  State,  33  Ind.  543.  (d)  R.  8.  1881,  §  1396. 

(z)  Acts  1873,  p.  103;   Evarts  v.  The  (e)  R.  S.  1881,  '§  1393. 

State,   48   Ind.  422;    Winsett  v.  The  (f )   Lamphier  v.  The  State,  70  Ind. 

State,    57   Ind.  26;    Merrick   v.   The  317. 

State,  63  Ind.  327  ;   Pierce  v.  The  State,  (g)  Bradford  v.  The  State,  15  Ind. 

67  Ind.  354.  347  ;  Bicknell  Civil  Prae.  223. 

(a)  R.  S.  1881,?  1790.  (h)   Bicknell  Civil  Prae    223;    Car- 

(b)  R.  S.  1881,  ?  1790.  penter  v.  Dame.  10  Ind.  125;  Graham 

(c)  R.  S.  1881,  §  405.  v.  Crockett,  18  Ind.  119. 

32 


498  THE   TRIAL.  [CHAP. 

right  to  challenge  a  juror  for  cause  may  exist  without  reference  to  the 
statutory  qualifications. 

A  juror  may  be  disqualified  to  serve  in  a  particular  cause  who  has 
all  of  the  qualifications  required  by  the  statute. 

764.  Juror  must  be  disinterested. — To  render  a  juror  compe- 
tent in  a  cause,  he  must  be  disinterested.     The  disqualification  may 
arise  from  a  pecuniary  interest  in  the  result  of  the  cause. 

The  statute  provides  that  it  shall  be  a  sufficient  cause  for  challenge 
to  a  juror  that  he  is  interested  in  another  suit,  begun  or  contemplated, 
involving  the  same  or  similar  matter.1 

Where  the  juror  has  an  interest  in  the  action  he  is  called  to  try',  he 
may  be  challenged  without  any  express  statutory  provision  authoriz- 
ing it.J 

The  juror  must  not  have  un  interest  in  the  suit,  or  another  involving 
the  same  or  a  similar  matter. k 

Relationship  to  either  of  the  parties  within  the  sixth  degree  renders 
the  juror  incompetent.1 

The  statute  provides  that,  "  When  a  person  is  required  to  be  disin- 
terested or  indifferent  in  acting  on  any  question  or  matter  affecting 
other  parties,  consanguinity  or  affinity  within  the  sixth  degree  inclu- 
sive by  the  civil  law  rules,  or  within  the  degree  of  second  cousin  inclu- 
sive, shall  be  deemed  to  disqualify  such  person  from  acting  except  by 
consent  of  the  parties.""1 

Under  the  criminal  code,  the  relationship  must  be  within  the  fifth 
degree  to  disqualify." 

765.  Having  formed   or  expressed  an  opinion. — The  effect 
upon  the  competency  of  a  juror  by  his  having  formed  or  expressed  an 
opinion  as  to  the  rights  of  the  parties  has  given  rise  to  much  contro- 
versy.    Formerly,  the  criminal  code  provided  in  express  terms  that 
"  any  juror  is  incompetent  who  has  formed  or  expressed  an  opinion  of 
the  guilt  or  innocence  of  the  defendant."0 

This  provision  of  the  statute  was  unqualified,  either  by  that  or  any 
other  section  of  the  criminal  code,  but  it  was  entirely  disregarded  by 

(i)  K.  S.  1881,  \  529.  (m)  R.  S.  1881,  §  240,  sub.  11 ;  Trul- 

(j)  Fleming   v.  The   State,  11  Ind.  linger  v.  Webb,  8  Ind.  198;  Dearmond 

234;    Pierson   v.   The   State,    11    Ind.  v.  Dearmond,    10   Ind.  191;    High    v. 

341 ;  Proffatt  on  Jury  Trial,  §?  169, 170.  The  Big  Creek  Ditching  Ass'n,  44  Ind. 

"(k)  Miller  r.  The  Wild  Cat  Gravel  356;    Hudsneth   v.    Herston,    64   Ind 

Road  Co.,  52  Ind.  51.  133;  Busk.  Prac.  247. 

(1)  Proffatt  on  Jury  Trial,  ?  174.  (n)  R.  S.  1881,  §  1793,  sub.  4. 

(o)  2  R.  S.  1876,  p.  393,  §  84. 


XIX.J  THE   TRIAL.  499 

the  later  decided  cases.  The  present  statute  governing  criminal  pro- 
cedure embodies  the  rule  laid  down  by  the  supreme  court  under  the 
old  criminal  code.  It  provides,  in  giving  the  causes  for  which  a  de- 
fendant may  challenge  a  juror  : 

"Second.  That  he  has  formed  or  expressed  an  opinion  as  to  the  guilt  or 
innocence  of  the  defendant ;  but  if  a  person  called  as  a  juror  state  that 
he"has  formed  or  expressed  an  opinion  as  to  the  guilt  or  innocence  of  the 
defendant,  the  court  or  the  parties  shall  thereupon  proceed  to  examine 
such  juror,  on  oath,  as  to  the  ground  of  such  opinion,  and  if  it  appears 
to  have  been  founded  upon  reading  newspaper  statements,  communica- 
tions, comments  or  reports,  or  upon  rumors  or  hearsay,  and  not  upon 
conversations  with  'witnesses  of  the  transaction,  or  reading  reports  of 
their  testimony,  or  hearing  them  testify,  and  the  juror  state  on  oath 
that  he  feel?  able,  notwithstanding  such  opinion,  to  render  on  impartial 
verdict  upon  the  law  and  evidence,  the  court,  if  satisfied  that  he  is 
impartial  and  will  render  such  verdict,  may  in  its  discretion  admit  him 
a«  competent  to  serve  in  such  case."  p 

The  qualifications  contained  in  this  section  are  the  same  in  substance 
and  effect  as  those  engrafted  upon  the  former  statute  by  judicial  legis- 
lation. The  present  section  is  a  fair  statement  of  the  rule  now  enforced 
in  both  civil  and  criminal  cases. q 

766.  Public  interest. — The  rule  is  general  that  the  interest  of  a 
juror  disqualifies.  This  rule  must,  however,  be  subject  to  some  quali- 
fications. Where  an  action  is  brought  in  which  the  whole  public,  as 
tax-payers,  have  an  interest,  to  apply  the  rule  would  deny  the  right  to 
a  trial  by  jury.  But  where  an  action  is  brought  by  or  against  a  town 
or  city  it  is  well  settled  that  a  tax-payer  of  such  town  or  city  has  such 
an  interest  as  will  disqualify  him/ 

The  extent  to  which  this  rule  of  public  interest  should  be  carried  is 
not  well  settled. 

(p)  R.  S.  1881,  §  1793,  sub.  2 ;  Walker  Cluck  v.  The  State,  40  Ind.  263 ;  Soran- 

v.  State,  102  Ind.  502.  ton  v.  Stewart,  52  Ind.  68;  McGregg  r. 

(q)  Goodwin    v.    Blachley,   4    Ind.  The  State,  4  Blkf.  101 ;  Van  Vacter  v. 

438;  Morgan  v.  Stevenson,  6  Ind.  169;  McKillip,  7   Blkf,  578;    Hart  v.  The 

Romaine  v.  The  State,  7  Ind.  63;  Rice  State,  57  Ind.  102;  Keiser  v.  Lines,  57 

v.  The  State,  7  Ind.  332 ;   Bradford  v.  Ind.  431 ;  Guetig  v.  The  State,  66  Ind. 

The  State,  15  Ind.   347;  Rice  v.  The  94;  Brown  v.  The  State,  70  Ind.  576; 

State,  16  Ind.  298;  Fahncstock  v.  The  Elliott  v.  The  State,  73  Ind.  10;  Dugle 

State,  23  Ind.  231 ;  Burk  v.  The  State,  v.  The  State,  100  Ind.  259. 

27   Ind.  430;    Trout  v.  Williams,   29  (r)  Hearne  v.  The  City  of  Greens- 

Ind.  18;  Morgan  v.  The  State,  31  Ind.  burg,  51  Ind.  119;  Diveny  v.  The  City 

193;  Clem  v.  The  State,  33  Ind.  418;  of  Elmira,  51  N.  Y.  506. 


500  THE   TRIAL.  [CHAP. 

Some  of  the  authorities  seem  to  be  against  extending  the  disqualifi- 
cation so  far  as  to  include  tax-payers  of  a  county. 

Mr.  Proffatt,  in  his  work  on  Jury  Trials,  says:  "  The  law  lays  down 
the  broad  proposition  that  an  interest  of  a  juror  in  the  matter  involved 
renders  him  incompetent.  This  must  evidently  have  some  limit ;  for  it 
is  npt  every  degree  of  interest  that  will  disqualify ;  and  hence  it  is  a 
matter  of  determination,  on  many  occasions,  as  to  what  degree  of  in- 
terest will  be  sufficient  to  exclude  one  from  the  jury. 

"  It  is  plain  that  there  must  be  some  degree  of  remote  interest  in  the 
subject-matter  that  ought  not  to  be  considered  -as  rendering  a  person 
incompetent,  as  where  the  citizens  of  a  county  having  to  pay  taxes  sue 
for  some  pecuniary  demand  that  may  benefit  the  county.3 

"  But  in  some  places,  where  the  district  is  limited,  and  where  the 
citizens  may  be  supposed  to  have  a  closer  and  more  intimate  interest, 
it  has  been  held  they  were  incompetent."* 

In  this  state  a  party  may  relieve  himself  from  any  feeling  of  inter- 
est that  may  influence  jurors  in  an  action  by  or  against  the  county  by 
taking  a  change  of  venue. u 

But  it  lias  been  held,  notwithstanding,  that  in  an  action  where  a 
money  judgment  may  be  rendered  against  the  county,  a  tax-payer  may 
be  challenged  for  cause. T 

CHALLENGES. 

767.  For  cause. — The  causes  for  which  challenges  may  be  made 
are  not  regulated  entirely  by  statute. 

The  common-law  right  of  challenge  existed  and  still  exists  inde- 
pendent of  statute. 

The  causes  that  will  authorize  a  challenge  of  an  individual  juror 
have  been  considered  partially  in  what  has  been  said  of  the  qualifica- 
tion of  jurors. w 

Any  of  the  causes  that  would  render  the  juror  incompetent  would 
entitle  a  party  to  challenge  for  cause.  The  right,  as  to  the  number 
that  may  be  challenged  for  cause,  must  necessarily  be  unlimited  so  long 
as  the  cause  exists.1 

The  grounds  upon  which  a  challenge  for  cause  might  rest  were  fully 
stated  in  an  early  case : 

(s)  Citing  Bassett  v.   Governor,   11         (u)  R.  S.  1881,  §  412,  sub.  4. 
Geo.  207;   Phillips  v.   State,  29   Geo.         (v)  The     Board     of     Comm'ra     of 

105;  Commonwealth  v.  Kyan,  5  Mass.  Fountain  County  v.  Loeb,  68  Ind.  29. 
90;  Middletown  v.  Ames,  7  Vt.  169.  (w)   Ante,  §  763  et  seq. 

(t)  Proffatt  Jury  Trials,  §  169.  (x)  Alexander  v.  Dunn,  5  Ind.  122. 


XIX.]  THE   TRIAL.  501 

"  The  following  maybe  deduced,  from  the  above-cited  authorities, 
as  grounds  of  challenge  for  cause — 

"  1.  That  the  juror  is  interested  in  the  pending  or  a  similar  suit. 

"2.  That  he  does  not  possess  the  statutory  qualifications. 

"  3.  That  he  is  of  kin  to  one  of  the  parties. 

"4.  Personal  hostility..  ^ 

"5.  A  pending  lawsuit  between  the  juror  and  the  party. 

"  6.  That  the  juror  is  master  or  servant,  landlord  or  tenant  of  the  op- 
posite party,  or  has  eaten  or  drank  at  his  expense  since  being  sum 
moned  as  a  juror,  or  has  promised  to  find  a  verdict  for  him. 

"  7.  That  he  has  formed  or  expressed  an  opinion  in  the  cause,  is  a 
witness  in  it,  or  has  been  a  juror  on  a  former  trial  of  it."y 

In  a  late  work  oil  jury  trials,  the  author  quotes  the  grounds  of  chal- 
lenge thus  laid  down  in  the  case  cited,  and  adopts  them  as  an  admira- 
ble and  concise  summary  of  the  causes  for  challenge.2  The  causes  thus 
stated  are  well  supported  by  authority  at  common  law  and  in  other 
states. 

There  is  less  liberality  under  the  present  practice  in  allowing  chal- 
lenges for  cause,  and  some  of  the  grounds  stated,  while  they  would  fur- 
nish ample  reason  for  resorting  to  a  peremptory  challenge,  would  not 
exclude  the  juror  for  cause.  This  may  safely  be  said  of  the  fourth, 
fifth,  and  sixth  causes  named. 

Under  a  special  statute  making  it  unlawful  for  officers  to  select  per- 
sons who  have  served  upon  a  jury  within  a  year,  and  making  such  ser- 
vice cause  for  challenge,  it  is  held  that  the  statute  applies  to  talesmen 
and  is  sufficient  ground  for  challenge.8 

768.  Peremptory  challenges. — Peremptory  challenges  are  such 
as  may  be  made  without  making  known  any  cause. 

The  statute  provides  that,  "  in  all  cases  where  the  jury  consists  of 
six  or  more  persons,  each  party  shall  have  three  peremptory  chal- 
lenges."15 The  term  "each  party"  is  held  to  include  all  the  parties  on 
either  side  of  the  cause,  and  all  the  plaintiffs  or  all  of  the  defendants 
must  join  in  the  challenges,  and  can  have  but  three. c 

AVhere  the  jury  consists  of  a  less  number  than  six,  no  right  to  a 
•K'rcmptory  challenge  exists.  The  right  to  challenge  peremptorily  con- 
i  in ues  until  the  jury  is  sworn  to  try  the  cause. d 

(y)  Fleming  v.  The  StaU,  11  Ind.  The  State,  44  Ind.  408;  Barker  v.  Hine, 
•JH4.  54  Ind  542. 

(z)  Proffatt's  Jury  Trials,  ?  168.  (b)  K.  S.  1881,  §  531. 

(a)   Pi.  S.  1881,   §  1395;    Christie  v.         (c)  Snodgrass  v.  Hunt,  15  Ind.  274. 

(d)   Morris  v.  The  State,  7  Blkf.  607 


502  THE   TRIAL.  [CHAP. 

769.  Challenge  to  the  array. — The  principal. ground  for  chal- 
lenge to  the  array  is  that  the  officer  or  some  one  of  the  officers  select- 
ing the  jury  is  interested  in  the  result  of  the  action.     The  same  degree 
of  interest  in  the  result  of  the  cause  on  the  part  of  the  officer  who  se- 
lects the  jury  that  would  disqualify  a  particular  juror  should  furnish 
sufficient  ground  of  challenge  to  the  entire  panel.6 

But  where  the  regular  panel  is  thus  disqualified  in  one  case,  there  is 
no  reason  for  discharging  the  jury  except  in, that  cause,  and  parties  in 
other  causes  have  the  right  to  demand  a  trial  by  the  regular  panel.f 

770.  Challenge  to  the  poll  or  to  the  array  must  be  made 
before  the  jury  is  sworn,  or  the  objection  is  waived. — Where 
an  objection  to  the  entire  panel  or  to  any  juror  exists  and  is  known  to 
the  party,  it  must  be  made  before  the  jury  is  sworn  to  try  the  cause,  or 
it  will  be  waived.     This  rule  is  general,  and  applies  to  the  statutory 
disqualifications  as  well  as  other  causes  for  challenge.8 

It  is  no  excuse  that  the  party  had  no  knowledge  of  the  disqualifica- 
tion of  the  juror  at  the  time,  if  he  has  failed  to  interrogate  him  as  to 
the  facts. h 

But  where  the  party,  or  the  court,  has  made  the  proper  inquiries, 
and  they  have  been  so  answered  by  the  juror  as  to  render  him  compe- 
tent, and  the  party  has  no  knowledge  until  afterwards  that  he  is  in- 
competent, the  objection  is  not  waived,  but  may  be  urged  as  a  reason 
for  a  new  trial.1 

Where  the  record  does  not  show  a  juror  to  be  incompetent,  the  su- 
preme court  will  presume  in  favor  of  his  competency  .•> 

771.  Discharge  of  competent  juror. — The  parties  are  entitled 
to  a  trial   by  jurors  selected  by  the   proper  officers,  whether  as   the 
regular  panel  or  as  talesmen, where  they  are  competent  and  not  engaged 
in  the  trial  of  another  cause.    It  is  error  to  discharge  a  competent 

(e)  Cowgill  v.  Wooden,  2  Blkf.  332.  note;  s.c.,  2  Bailey,  66;  Proffatt's  Jury 

(f )  Eight  v.  Langdon,  53  Ind.  81.  Trials,  §  198. 

(g)  Rice  v.  The  State,  16  Ind.  298;  (h)  Kingen   r.   The   State,    46  Ind. 
Barlow  v.  The  State,  2  Blkf.  114;  Gil-  132;  Croy  v.  The  State,  32  Ind.  384; 
looley  v.  The  State,  58  Ind.  182;  Kin-  Gillooley  v.  The   State,   58  Ind.  182; 
gen  v.  The  State,  46  Ind.  132;  Croy  v.  Rollins  r.  Ames,  9  Am.  Dec.  79,  81,  and 
The  State,  32  Ind.  384;    Patterson  v.  note;  s.  c  ,  2  N.  H.  349. 

The   State,    70   Ind.  341;    Parmele  v.  (i)  Rice  v.  The  State,  16  Ind.  298; 

Guthery,  1  Am.  Dec.  65;  s.  c  ,  2  Root,  Hudspeth  v.  Herston,  64  Ind.  132. 

185;  Davis  v.  Allen,  22  Am.  Dec.  386,  (j)  Bradford  v.  The  State,  15  Ind 

388,  and  note;  s.  c.,  11  Pick. 466;  State  347. 
r.  Crank,  23  Am.  Dec.  117,  128,  and 


XIX. J  THE   TRIAL.  503 

juror  over  the  objection  of  either  party,  except  upon  the  challenge  of 
the  opposite  party  or  for  ofcher  good  cause  shown. k 

772.  Examination  of  juror  as  to  his  competency. — The  ex- 
tent to  which  a  party  should  be  allowed  to  go  in  the  examination  of  a 
juror,  for  the  purpose  of  ascertaining  whether  he  should  be  allowed  to 
remain  on  the  jury  or  not,  can  not  be  governed  by  any  fixed  rules. 
Under  the  practice  in  this  state  great  latitude  is  generally  given  in  the 
examination. 

It  is  evident  that  inquiries  to  be  submitted  to  the  juror  should  be 
permitted  to  go  beyond  the  mere  question  of  his  competency.  The 
party  has  a  right  to  know  what  his  feeling  is  toward  the  parties  to  the 
action  and  in  connection  with  the  subject-matter  of  the  action,  as  a 
means  of  determining  whether  in  case  he  is  found  to  be  competent 
there  is  still  ground  sufficient  to  warrant  a  peremptory  challenge.  As 
the  examination  is  usually  conducted  in  the  presence  of  other  persons 
who  have^been  called  to  try  the  cause,  and  may  be  retained  as  jurors, 
care  should  be  taken  by  the  court  that  the  juror  under  examination  is 
not  allowed  to  disclose  any  facts  connected  with  the  merits  of  the  cause 
or  that  will  tend  in  any  way  to  influence  them  in  arriving  at  a  verdict. 

In  the  examination  the  rights  of  the  juror  must  be  respected.  A 
question,  the  answer  to  which  will  tend  to  his  infamy  or  to  subject 
him  to  a  criminal  prosecution,  he  can  not  be  compelled  to  answer,  and 
the  question  should  not  be  allowed.  The  facts  must  be  proved  by  ex- 
trinsic evidence.1 

In  some  of  the  earlier  cases  it  was  held  that  the  juror  could  not  be 
asked  whether 'he  had  formed  or  expressed  an  opinion  as  to  the  guilt 
or  innocence  of  the  prisoner  in  a  criminal  action,  because  the  answer 
might  tend  to  disgrace  him.m  Under  the  code  the  inquiry  is  permitted- 

It  is  not  proper,  however,  to  inquire  what  his  opinion  is,  or  what  has 
been  said  to  him,  or  by  him  to  others,  as  to  the  merits  of  the  contro- 
versy, or  any  opinion  he  may  have  formed  or  expressed. 

The  juror  may  be  asked,  with  reference  to  a  material  point  at  issue 
in  the  cause,  whether  he  has  formed  or  expressed  an  opinion  as  to  that 
particular  question  or  issue." 

773-  Juror  having  suit  in  court. — It  was  provided  by  an  act 
passed  in  1852,  prescribing  the  manner  of  impaneling  petit  jurors,  that 

(k)  Meyers  v.  The  State,  20  Ind.511.  (m)  Jones  v.  The  State,  2  Blkf.475  ; 

(1)  Hudson   v.   The    State,   1    Blkf.  Proffatt's  Jury  Trials,  §  196. 

317;  Jones  v.  The  State,  2  Blkf.  475;  (n)  Trout  v.  Williams,  29  Ind.  18. 
Proffatt's  Jury  Trials,  §  196. 


504  THE   TRIAL.  [CHAP. 

the  sheriff  should  in  no  case  select  or  summon  as  talesman  any  person 
who  had  a  cause  pending  in  such  court  for  trial  at  that  term.0 

Under  this  statute,  it  was  doubted  by  the  supreme  court  whether 
the  statute  was  merely-  directory  as  to  the  duty  of  the  sheriff,  or 
whether  the  juror  having  a  cause  pending  was  sufficient  ground  for 
challenge.1* 

The  present  statute  regulating  the  manner  of  selecting  juries  con- 
tains no  such  direct  provision  ;  therefore  the  question  is  unimportant. 

774.  Swearing  the  jury. — The  jury  must  be*  sworn  after  they 
have  been  agreed  upon  and  accepted.     The  statute  provides : 

"  Sec.  530.  Before  the  commencement  of  the  trial,  an  oath  must  be 
administered  to  each  juror  that  he  will  well  and  truly  try  the  matter 
in  issue  between  the  parties,  and  a  true  verdict  give  according  to  law 
and  evidence. "q 

The  plain  meaning  and  intention  of  the  statute  is  that  each  juror 
shall  be  sworn  separately,  but,  perhaps  as  a  matter  of  convenience, 
the  form  has  been  changed  in  practice  to  "  you  and  each  of  you,"  and 
the  whole  panel  is  sworh  at  the  same  time. 

Parties  have  a  right  to  have  the  jury  sworn  or  affirmed  as  provided 
by  the  statute,  but  any  objection  to  the  want  of  an  oath  or  its  form 
should  be  made  at  the  time.r 

Where  the  record  fails  to  show  whether  the  jury  has  been  properly 
sworn  or  not,  it  will  be  presumed  when  it  is  shown  generally  that  they 
were  sworn.8 

775.  Mental  and  physical  qualifications. — The  statute  pro- 
vides no  standard  by  which  to  determine  the  degree  of  intelligence  re- 
quisite for  a  juror.     That  he  must  be  of  sound  mind  is,  of  c  mrse,  im- 
plied.    In  some  of  the  states  it  is  required  that  a  person  shall  be  able 
to  read  and  write  or  he  is  incompetent,  but  this  is  not  the  law  in  Indi- 
ana.    That  a  juror  should  understand  the  English  language  and  be  of 
sufficient  intelligence  to  know  and  understand  what  is  said  by  the 
court,  witnesses,  and  counsel,  is  beyond  question.'     Beyond  this  the 
matter  must  be  left  to  the  sound  discretion  of  the  court. 

The  mere  question  of  age  is  not  a  ground  of  challenge  where  the 
juror  is  of  sufficient  ago  to  be  a  voter  of  the  county.  This  was  held 

(o)  2  R  S.  1876,  p.  30,  \  2.  (s)  Mann   v.   Clifton,    3  Blkf.  304; 

(p)  The  Miami  Valley  Fur.  Co.  v.  Judah  v.  McNamee,  3  Blkf.  269. 

Wesler,  47  Ind.  65.  (t)  The  Lafayette  Plank  Koad  Co. 

(q)  Pv.  S.  1881,  §  530.  v.  The  New  Albany,  etc.,  R  R  Co.,  13 

(r)  Lindley  v.  Kindall,  4  Blkf.  189;  Ind.  90;  Proffatt's  Jury  Trials,  §  118; 

Applegate  v.  Boyles.  10  Ind.  435.  Hogshead  v.  The  State,  9  Humph.  59. 


XIX.]  THE   TRIAL.  50l> 

under  a  statute  exempting  persons  over  sixty  years  of  age  from  service 
ou  juries." 

The  exemption  on  account  of  old  age  was  held  to  be  personal  to  the 
juror  who  might  claim  the  exemption  or  not,  as  he  pleased.  It  was 
not  ground  for  challenge. 

776.  Persons  exempt  from  service  as  jurors. — The  question 
of  the  right  of  a  party  called  as  a  juror  to  exemption  is  unimportant 
as  a  question  of  practice,  where  the  right  actually  exists,  as  the  right  to 
to  be  excused  is  personal  to  the  juror  and  is  not  ground  for  a  challenge.7 
But  where  the  juror  is  not  in  fact  exempt  and  is  discharged  over  the 
objection  of  either  party,  whether  upon  the  ground  of  supposed  ex- 
emption or  other  insufficient  cause,  it  is  error.w 

The  statute  points  out  the  manner  of  selecting  jurors,  by  officers 
whose  sole  duty  it  is  to  make  the  selections.  No  party  should  be  re- 
quired to  try  his  case  by  a  jury  taken,  in  whole  or  in  part,  from  the 
bystanders,  until  the  regular  panel  is  legally  exhausted.  This  right 
is  frequently  violated  by  excusing  jurors  without  other  cause  than  their 
convenience.  In  some  of  the  circuits  in  the  state  the  liberality  of  the 
courts  in  excusing  members  of  the  regular  panel  has  become  a  positive 
evil,  that  deprives  the  law  regulating  the  selection  of  juries  of  much 
of  its  force.  In  case  of  the  grand  jury  the  causes  that  will  excuse 
from  service  are  expressly  provided.1 

A  member  of  the  petit  jury  should  not  be  excused  for  less  weighty 
reasons. 

OPEN    AND    CLOSE. 

777.  Party  having  the  burden   of  the  issue   entitled   to 
begin. — The  right  to  open  and  close  the  evidence  and  argument  is  re- 
garded,* in  the  practice,  as  one  of  importance. 

The  rule  is  well  settled  that  the  party  who  has  the  burden  of  the 
issue  has  the  right  to  begin. y 

(u)  The  State  v.  Miller,  2  Blkf.  35.  Judah  v.  The  Trustees  of  Vincennes 

(v)  Ante,  §  775.  University,  23  Ind.  272;  List  v. Korte- 

( w)  Ante,  §  771.  peter,  26  Ind.  27  ;  Fetters  v.  The  Mun- 

(x)  R.  S.  1881,  §  1649.  cie  National  Bank,  34  Ind.  251 ;  Jarboe 

(y)  R.  S.  1881,  §§  53:},  536;  Shank  v.  v.  Scherb,  34  Ind.  350;  Smith  v.  Dallas, 

Fleming,  9  Ind.  189;  Gaul  v.  Fleming,  35  Ind.   255;    Williams   v.  Allen,   40 

10  Ind.  253;    Patton  v.  Hamilton,  12  Ind.    295;    Sehee    v.    McQuilken,    59 

Ind.  256;   Zehner  v.  Kepler,  10  Ind.  Ind.  269;   Lyman  ».  Buckner,  60  Ind. 

290;   Ashing  v.   Miles,    10    Ind.   329;  402;     Heilman   v.   Shanklin,    60   Ind. 

Bowen   v.  Spears,    20  Ind.   146;    The  424;  Rothrock   v.  Perkinson,   61. Ind. 

City  of  Aurora  v.  Cobb,  21  Ind.  492;  39  ;  Stevens  v.  Overturf,  62  Ind.  331  ; 


50G  THE   TRIAL.  [CHAP. 

The  question  as  to  which  party  has  the  burden  of  the  issue  has  not 
always  been  so  easy  to  determine.  The  general  rule  is,  that  where  the 
plaintiff  is  bound  to  offer  any  proof  to  entitle  him  to  recover,  or  to  es- 
tablish the  amount  he  is  entitled  to  recover,  he  has  the  right  to  the 
open  and  close.2 

This  was  the  rule  at  common  law,  but  it  was  held  in  an  early  case 
that  the  rule  was  changed  by  the  code,  and  that  the  plaintiff  could  not 
claim  the  open  and  close,  on  the  ground  that  he  must  prove  the  amount 
of  his  damages." 

But  this  case  was  overruled  in  the  case  of  Fetters  v.  The  Muucie 
National  Bank,  supra. 

This  being  the  rule,  the  question  whether  the  general  denial  is 
pleaded  or  not,  can  not  determine  the  question  of  the  plaintiff's  right 
to  open  and  close.  He  is  bound  to  prove  the  amount  of  his  damages, 
where  they  are  unliquidated,  whether  the  denial  is  in  or  not.  The 
statute  puts  in  the  denial  as  to  the  amount  the  plaintiff  is  entitled  to 
recover. 

Where  the  plaintiff's  damages  are  liquidated  or  can  be  ascertained 
by  calculation,  no  evidence  is  necessary  on  his  part  if  the  denial  is  not 
pleaded,  and  the  defendant  is  entitled  to  the  open  and  close. 

It  is  held  that,  in  actions  on  promissory  notes  providing  fora  reason- 
able attorney's  fee,  the  plaintiff  is  entitled  to  begin,  although  the  lia- 
bility on  the  note  is  admitted.  The  amount  of  the  attorney's  fee  is 
unliquidated,  and  the  plaintiff  must  prove  what  amount  is  reasonable.1* 

It  is  otherwise  where  the  amount  of  the  attorney's  fee  is  fixed  by  the 
contract,  and  where  the  complaint  charges  a  reasonable  fee  to  be  a  cer- 
tain sum,  the  defendant  may  claim  the  right  to  begin  by  admitting  the 
amount  charged. 

Where  the  plaintiff's  complaint  is  in  different  paragraphs,  and 
there  is  a  denial  pleaded  to  one  and  affirmative  defenses  to  the 
other,  and  there  is  no  evidence  to  support  the  paragraph  to  which 
there  is  a"  denial,  the  defendant  is  entitled  to  the  open  and  close  of  the 
argument.0 

Pate  v.  The   First  National   Bank  of  Howard  v.  Kisling,  15  Ind.  83 ;  Grand 

Aurora,  63  Ind.  254;   Hyatt  v.  Clem-  Rapids,  etc.,  11.  R.  Co.  v.  Horn,  41  Ind. 

ents,  65  Ind.   12;    Tull   v.  David,  27  479;. The  City  of  Aurora  v.  Cobb,  21 

Ind.  377;   Hamlyn   v.  Nesbit,  37   Ind.  Ind.  492;  McLees  v.  Felt,  11  Ind.  218. 

284;  Kent  v.  White,  27  Ind.  390.  (a)  Judah  r.   The  Trustees   of  the 

(z)  The  Baltimore  and  Ohio  R.  R.  Vincennes  University,  23  Ind.  272,  282. 

Co.  v.  Whinney,  36  Ind.  436;  Fetters  (b)  Camp  v.  Brown,  48  Ind.  575. 

•a.  The  Muncie  National  Bank,  34  Ind.  Hyatt  v.  Clements,  65  Ind.  12. 

251;   Smith  v.    Dallas,   35   Ind.   255;  (c)  Zehner  v.  Kepler,  16  Ind.  290. 


XIX.]  THE   TRIAL.  507 

But  if  there  is  any  evidence  to  support  the  paragraph,  the  plaintiff 
may  begin. d 

The  plaintiff  can  not,  by  immaterial  or  improper  averments  in  his 
complaint,  claim  the  right  to  opeji  and  close.  If  the  material  allega- 
tions are  confessed,  other  averments  must  be  disregarded.6 

Where  the  defendant  files  a  counterclaim  only,  the  plaintiff's  cause 
of  action  is  admitted,  except  as  to  the  amount  of  damages,  and  where 
his  damages  are  liquidated  the  defendant  has  the  open  and  close.f 

But  the  issues  formed  upon  the  counterclaim  are  the  same  as  upon 
the  original  complaint,  and  if  no  proof  is  necessary  from  the  plaintiff 
in  support  of  his  complaint,  and  he  assumes  the  burden  of  the  issue 
upon  the  counterclaim  by  an  answer  thereto  in  confession  and  avoid- 
ance, he  may  begin. (1) 

Where  an  answer  professes  to  be  in  confession  and  avoidance,  but  is, 
in  fact,  an  argumentative  denial,  the  plaintiff  is  entitled  to  the  open 
and  close.8 

Where  the  defendant  has  so  pleaded  as  to  cast  the  burden  of  the  is- 
sue upon  the  plaintiff,  he  can  not,  as  a  matter  of  right,  withdraw  the 
general  denial  after  the  jury  is  sworn  and  claim  the  right  to  begin.  It 
is  a  matter  within  the  discretion  of  the  court.1' 

778.  The  opening  statement. — "The  party  upon  whom  rests 
the  burden  of  the  issues  may  briefly  state  his  case  and  the  evidence  by 
which  he  expects  to  sustain  it."' 

The  question  whether  the  plaintiff  or  defendant  has  the  burden  of 
the  issue  must,  at  the  beginning  of  the  trial,  be  determined  from  the 
pleadings. 

The  evidence  may  be  such,  in  some  cases,  as  to  shift  the  right  in  the 
closing  argument.-* 

The  opening  statement  should  consist  of  a  plain  statement  of  the 
case  and  the  evidence  to  support  it.  An  argument  of  any  of  the  facts 
stated,  or  their  effect  upon  the  rights  of  the  parties,  is  improper,  and 
should  not  be  allowed.  The  issues  should  first  be  stated  briefly,  or  read 
if  necessary,  and  the  points  in  dispute  carefully  and  clearly  pointed 
out.  This  should  be  followed  by  a  statement  in  brief  of  the  evidence 
to  be  given  in  support  of  the  case.  Although  the  jury  are  not  the 
judges  of  the  law,  it  is  proper,  in  an  opening  of  the  case,  to  state  what 

(d)  Jackson  ».  Pitsford,  8  Blkf.  194;       '  (g)  Rothrock  v.  Perkinson,  61  Ind. 
"Williams  v.  Allan,  40  Ind.  295;  Shaw     39. 

».  Barnhart,  17  Ind.  183.  (h)  Mason  v.  Seitz,  36  Ind.  516. 

(e)  List  v.  Kortepeter,  20  Ind.  27.  (i)  R  S.  1881,  §  533,  sub.  1- 

(f )  Schee  v.  McQuilken,  59  Ind.269.        (j)  Post,  §  780. 
(1)  McCormick  Harvesting,  etc.,  Co. 

v.  Gray,  100  Ind.  285. 


508  THE    TRIAL.  [CHAP. 

the  law  applicable  to  the  case  is  believed  to  be.  The  importance  of  a 
clear  and  concise  opening  statement  can  not  be  overestimated;  but 
it  must  be  admitted  that  there  is  no  part  of  the  management  of  a 
'case  in  which  the  attorney  will  find  jmore  difficulty,  or  in  which  he  is 
more  likely  to  make  a  failure.  "  Strange  as  it  may  appear,  there  is 
nothing  more  difficult  in  the  art  of  advocacy  than  effectively  to  open  a 
case  to  a  jury.  The  proof  of  this  is  the  rarity  of  the  exhibition. 
How  few  of  our  advocates  accomplish  it  to  the  entire  satisfaction  of  a 
critical  listener.'"5 

Perhaps  the  greatest  mistake,  and  the  one  the  most  frequently  com- 
mitted, is  that  of  making  the  opening  statement  stronger  than  the 
evidence  upon  the  trial.  This  is  a  mistake  that  should  be  carefully 
guarded  against.1 

After  the  opening  statement,  by  the  party  having  the  burden  of  the 
issue,  "the  adverse  party  may  briefly  state  his  defense  and  the  evi- 
dence he  expects  to  offer  in  support  of  it."m 

Neither  party  is  required  to  make  an  opening  statement.  He  may 
do  so  or  not,  at  his  option. 

779.  The  evidence. — The  party  having  the  burden  of  the  issues 
must  fh-st  produce  his  evidence.     The  adverse  party  wfll  then  produce 
his  evidence,  which  may  then  be  rebutted." 

The  court  sometimes  permits  the  introduction  of  evidence  to  go 
farther  than  the  rebuttal.  It  is  a  matter  within  the  discretion  of  the 
court,  but  can  not  be  claimed  as  a  matter  of  right  under  the  statute. 

The  rules  governing  the  admissibility  of  evidence,  the  competency  of 
witnesses,  and  other  questions  connected  with  the  proof  to  be  made  in 
a  cause,  will  be  considered  in  a  subsequent  chapter. 

780.  The  closing  argument. — As  a  rule  the  party  having  the 
burden  of  the  issue  is  entitled  to  the  open  and  close  in  the  final  argu- 
ment.0   This  is  not  always  the  case,  however.     The  burden  of  one  of 
the  issues  may  be  upon  the  plaintiff  and  another  upon  the  defendant. 
If  there  is  no  evidence,  on  behalf  of  the  plaintiff,  to  support  the  issue 
resting  upon  him,  and  the  only  question  for  the  court  or  jury  to  deter- 
mine is  the  issue  resting  upon  the  defendant,  he  is  entitled  to  begin. P 

Although  the  burden  of  one  of  the  issues  in  such  case  is  upon  the 
plaintiff,  and  he  has  been  allowed  to  begin,  both  in  making  the  open- 
ing statement  and  in  introducing-  the  evidence,  the  burden  of  proof,  in 

(k)  Cox  Adv.  338.  (o)   K.  S.  1881,  §  536. 

(1)  Proffatt's  Jury  Trial,  §  '210.  (p)  Zehner  v.  Kepler,  16  Ind.  290; 

(m)  It.  S.  1881,  I  533,  sub.  2.  ante,  §  777. 

(n)  R.  S.  1881,§533,  sub  3 


XIX.]  THE   TRIAL.  509 

the  outcome,  is  upon  the  defendant,  and  he  should  be  allowed  to  open 
and  close  in  the  argument. 

This  can  only  be  done  where  there  is  no  evidence  to  support  the  issue 
resting  upon  the  plaintiff.  Where  the  court  would  feel  warranted,  if 
there  was  but  the  one  issue  in  instructing  the  jury  to  find  for  the  de- 
fendant, he  should  be  allowed  to  begin. q 

INSTRUCTIONS. 

781.  Special  instructions. — "When  the  evidence  is  concluded, 
and  either  party  desires  special  instructions  to  be  given  to  the  jury, 
such  instructions  shall  be  reduced  to  writing,  numbered  and  signed 
by  the  party  or  his  attorney  asking  the  same,  and  delivered  to  the 
court.  "r 

While  the  statute  requires  the  court  to  instruct  the  jury  generally," 
the  failure  to  instruct  upon  any  given  point  will  not  reverse  the  cause, 
unless  the  party  desiring  such  instruction  asks  for  the  same  specially.' 

The  statute  requires  that,  "  where  either  party  asks  special  instruc- 
tions, the  court  shall  either  give  each  instruction  as  requested,  or  posi- 
tively refuse  to  do  so;  or  give  the  instructions,  with  a  modification,  in 
such  manner  that  it  shall  distinctly  appear  what  instructions  were  given 
in  whole  or  in  part,  and  in  like  manner  those  refused,  so  that  either 
party  may  except  to  the  instructions  as  asked  for,  or  as  modified,  or  to 
the  modification."" 

The  instructions  must  be  signed  by  the  party,  or  his  attorney/  and 
must  be  prepared  and  delivered  to  the  court  at  or  before  the  close  of 
the  evidence. w 

The  court  can  not  require,  by  a  rule  of  court  or  otherwise,  that  special 
instructions  shall  be  delivered  to  the  court  before  the  trial  commences, 
or  at  any  time  earlier  than  that  fixed  by  the  express  terms  of  the 
statute.1 

782.  May  be  modified,  but  not  verbally. — The  court  is  not 
bound  either  to  give  or  refuse  instructions  as  they  are  asked. 

The  statute  expressly  authorizes  the  court  to  modify  the  instructions 

(q)  Post,  §  789.  Co.  v.  Vancant,  40  Ind.  233;  The  Terre 

(r)   K.  S.  1881,  §  533.  Haute,  etc.,  R.  R.  Co.  v.  Graham,  '16 

(s)  Post,  §  784.  Ind.  239;    Sutherland  r.   Hankins,  56 

(t)   Burgett  v.  Biirgett,  43  Ind.  78;  Ind.  343,  352;  Chicago,  etc.,  R.  R.  Co. 

Rollins  r.  The  .State,  62  Ind.  46;  Sulli-  v.  Hedges,  195  Ind.  398. 

van  c.  The  State,  52  Ind.  309.  ( w)  Newton  v.  Newton,  12  Ind.  527; 

(\\\   It  S.  1881,  §  533,  sub.  6.  Ollam  v.  Shaw,  27  Ind.  388. 

(v)  The   Jeffersonville,  etc.,    R.   R.  (x)  Laselle  v.  Wells,  17  Ind.  33. 


510  THE   TEIAL.  [CHAP. 

and  give  them  as  madified.y  But  any  changes  made  therein  must  be 
in  writing.  They  can  not  be  given  and  accompanied  by  a  verbal  modi- 
fication, whether  the  court  has  been  requested  to  instruct  in  writing  or 
not.z 

The  object  of  the  statute  is,  that  the  modification  shall  be  so  made 
that  the  party  asking  the  instruction  may  be  able  to  make  it  a  part  of 
the  record.  This  object  would  be  entirely  defeated  by  allowing  the 
instruction  to  be  modified  verbally.8 

783.  When  proper  instructions  asked  may  be  refused. — 
It  is  not  always  available  error  that  the  court  has  refused  to  give  a 
special  instruction  asked  for,  although  the  instruction  states  the  law 
correctly  and  is  applicable  to  the  issues  and  the  evidence. 

It  was  said  in  an  early  case:  "An  instruction  asserting  a  correct 
legal  principle  may  be  rightly  refused  for  any  one  of  at  least  three 
reasons : 

"  1.  That  it  is  not  pertinent  to  the  particular  case  as  made  by  the 
evidence. 

"  2.  That  it  was  not  handed  up  to  the  judge  for  his  examination  at 
the  proper  time. 

"  3.  That  it  was  clearly  embraced  in  instructions  given."  b 

Where  it  appears  from  the  record  that  either  of  these  reasons  exists 
there  is  no  error,  and  where  the  record  fails  to  show  whether  or  not  they 
or  either  of  them  exist,  the  court  will  presume  in  favor  of  the  action 
of  the  lower  court. 

784.  General  instructions. — It  is  the  duty  of  the  court  to  in- 
struct the  jury,  generally,  as  to  the  law  governing  the  case  as  pre- 
sented by  the  issues  and  the  proof. c 

The  duty  of  the  court  in  this  respect  is  imperative,  and  no  request 
to  instruct  is  necessary.  It  may  be  dispensed  with  by  the  consent  of 
the  parties,  but  not  otherwise.01 

The  extent  to  which  the  instruction  should  go  in  order  to  comply 

(y)  K.  S.  188i;  §  533,  sub.  6.  Ind.  547;  Hadley  v.  Prather,  64  Ind. 

(z)  Lung  v.  Deal,  16  Ind.  349  ;  Pro-  137  ;  Pate  v.  The  First  National  Bank, 

vines  v.  Heaston,  67  Ind.  482.  63  Ind.  254;  Crandallv.  The  First  Na- 

(a)  Patterson   v.   The  Indianapolis,  tional    Bank,  61   Ind.   348 ;  Steeple  v. 
etc.,  Plank  Koad  Co ,  56  Ind.  20.  Downing,  60  Ind.  478;  Everson  v.  Sel- 

(b)  Fitzgerald  v.  Jerolaman,  10  Ind.  er,  105  Ind.  266. 

338 ;  Rogers  v.  Rogerr,  46  Ind.  1 ;  The        (c)  R.  S.  1881,  ?  533,  sub.  5. 
Ohio  and  Mississippi  R.  Co.  v.  Hem-         (d)  Welch    •;.   Watts,   9    Ind.   115; 
berger,  43  Ind.  462;   Abrams  r.  Smith,     Williams  v.  The  State,    10   Ind.  503, 
8   Blkf.   95;    Hines   v.   Overacker,   66    612;  K  rack  v.  Wolf,  39  Ind.  88;  Brad- 
way  v.  Waddell,  95  Ind.  170. 


XIX.]  THE   TRIAL.  511 

with  the  requirement  that  they  shall  be  "general"  is  not  determined 
by  the  authorities.  But  the  rule  is  that  if  the  instructions  are  right 
as  far  as  they  go,  although  they  do  not  cover  the  whole  case,  neither 
of  the  parties  can  complain,  as  they  have  the  right  to  ask  for  further 
instructions.6 

785.  Must  be  in  writing  when  requested. — The  court  is  not 
required  to  give  the  instructions  in  writing  unless  one  of  the  parties 
requests  it,f  and  the  request  that  they  shall  be  in  writing  must  be  made 
iu  time  to  give  the  court  an  opportunity  to  give  them  due  consideration^ 

The  request  need  not  be  in  writing.  It  is  sufficient  if  the  court  is 
made  to  understand  that  the  party  desires  that  it  shall  instruct  in 
writing.11 

The  instructions  must  be  numbered  and  signed  by  the  judge.1 

786.  Error  to  give  any  part  of  instructions  orally  over  re- 
quest that  they  be  in  writing. — The  object  of  the  statute  requir- 
ing the  court  to  instruct  in  writing  when  requested  is  obvious.     It  is 
that  they  may  become  a  part  of  the  record  to  be  taken  advantage  of 
in  the  supreme  court,  if  erroneous.     To  allow  the  court  to  give  any 
part  of  the  instructions  orally,  or  to  explain  or  modify  verbally,  those 
given  would  be  a  plain  violation  of  the  statute.     It  has  been  uniformly 
held  that  where  there  is  a  request  that  the  instructions  shall  be  given 
in  writing  it  is  error  to  give  any  part  of  them  orally,  or  accompany 
those  given  with  verbal  explanations.-* 

The  question  whether  the  oral  instructions  are  right  or  wrong  is  not 
material.  The  error  is  in  giving  them  orally  when  they  should  be  in 
writing.11 

(e)  Bissot  v.  The  State,  53  Ind.  408;  w~y,  7   Ind.   187;    The  Toledo,   etc., 
Schenok  v.  Sithoff,  75  Ind.  485;  Har-  Railway  Co.  v.  Daniels,  21   Ind.  256; 
per  v.  State,  101  Ind.  109;  Louisville,  Pate  v.  Wright,  30  Ind.  476;  Suther- 
etc.,  Ry.  Co.  v.  Grantham,  104  Ind.  353.  land  v.  Venard,  34  Ind.  390  j  Meredith 

(f )  R.  S.  1881,  §  533,  sub.  5.  v.  Crawford,  34   Ind.  399;   Gray  v.  Sti- 

(g)  McJunldns  w.  The  State,  10  Ind.  ver*,  38  Ind.  197;    Hardin    v.  Helton, 
140;  Newton  v.  Newton,  12  Ind.  627;  50  Ind.  319;    Bosworth  v.   Barker,  66- 
Goodwine    v.    Miller,    32     Ind.    419;  Ind.  595;  Provines  v.  Heaston,  67  Ind. 
Chance    v.     The     Indianapolis,     etc.,  482;     Davis   v.    Foster,    68   Ind.   238; 
Gravel  Road  Co.,  32  Ind.  472.  McClay  v.  The  State.  1  Ind.  385;  Brad- 

(h)  Gray  v.  Stivers,  38  Ind.  197.  way  v.  Waddell,  95  Ind.  170. 

(i)  R.  S.  1881, 1  533,  sub.  5.  (k)  Riley   v.   Watson,  18  Ind.  291 ; 

(j)  Kenworthy  v.  Williams,  5  Ind.  Meredith   v.   Crawford,    34   Ind.   399; 

375;   TownsendV  Doe,   8   Blkf.  328;  Hardin  v.  Helton.  50  Ind.  319;    Bos- 

Heaston  v.  The  Cincinnati,  etc.,  R.  R.  worth  v  Barker.  65  Ind.  595.     As  to 

Co.,   16   Ind.  275;     Lung   v.  Deal,  16  what  will  amount  to  an  "  instruction  " 

Ind.  349;    Lasselle   v.  Wells,  17  Ind.  within  this  rule,  see  Bradway  v.  Wad- 

33;  Riley  v.  Watson,  18  Ind.  291 ;  The  dell,  95  Ind.  170. 
Rising  Sun,  etc,,  Turnpike  Co.  v.  Con- 


512  THE    TRIAL.  [CHAP. 

An  examination  of  the  authorities  will  show  that  the  rule  is  enforced 
with  great  strictness.  Notwithstanding  this,  the  number  of  cases  cited 
prove  that  it  is  constantly  being  violated  by  the  lower  courts. 

In  the  case  of  Bosworth  v.  Baker,  supra,  the  court  say:  "Under 
our  code  it  is  the  undoubted  right  of  a  party,  if  he  properly  requests 
it,  to  have  all  of  the  instructions  given  by  the  court  reduced  to  writing 
before  they  are  given,  and  we  have  a  long  line  of  decisions  holding 
that  it  is  error,  for  which  a  judgment  will  be  reversed,  to  charge  the 
jury  orally,  either  in  whole  or  in  part,  where  a  proper  request  has  been 

made  to  have  the  charge  put  in  writing  before  it  is  given 

But  it  is  insisted  that  the  violation  of  the  statute  in  giving  the  oral 
charge  complained  of  in  this  case  was,  at  most,  only  a  technical  viola- 
tion, for  which  the  judgment  ought  not  to  be  reversed,  as  the  verdict 
was  fully  supported  by  the  evidence.  We  are,  however,  not  author- 
ized to  hold  that  a  substantial  disregard  of  an  imperative  statute  is,  in 
any  event,  only  a  technical  error.  If  we  can  overlook  the  relaxation 
of  the  statutory  requirement  above  referred  to  in  a  comparatively  un- 
important case  like  this,  we  might  permit  a  still  further  relaxation  in 
a  more  important  case,  in  utter  disregard  of  both  the  letter  and  spirit 
of  such  statutory  requirement.  This  would  be  a  very  unsafe  prac- 
tice to  adopt,  and  would  afford  a  dangerous  precedent  in  judicial  pro- 
ceedings." 1 

787.  Must  be  applicable  to  the  issues  and  the  evidence. — 
Instructions  upon  mere  abstract  propositions  of  law  should  not  be 
given  by  the  court,  and  are  properly  refused  when  asked  specially  by 
the  parties.™ 

The  instructions  must  not  only  state  the  law  correctly,  as  an  abstract 
question,  but  the  law  must  be  correctly  stated  when  applied  to  the 
pleadings  and  evidence  in  the  case  on  trial." 

But,  where  an  instruction  states  the  law  correctly,  the  cause  will  not 

(1)   Bosworth  v.  Barker,  65  Ind.  595.  Ind.  480;    Herbert   v.  Drew.   32    Ind. 

(m)  Huntington  v.  Colinan,  1    Blkf.  364;   Musselman  v.  Pratt.  44  Ind.  126; 

348;  Sinard  v.  Patterson,  3  Blkf.  353;  Hill  v.  Newman,  47  Ind.  187;   Bissott 

Musselman  v.  Pratt,  44  Ind.  126;  Sher-  v.  The   State,  53  Ind.  408;    Evans   v. 

man  v.  Holland,  73  Ind.  472;  Nicklaus  Gallantine,  57  Ind.  367;   Black  r.  DUM- 

v.  Burns,  75  Ind.  93.  can,  60  Ind.  522;  Terry  v.  Shivelly,  64 

(n)  Turpin  v.   Kemy,    3    Blkf.   210;  Ind.  106;    McMahan    v.  Flanders,  64 

Rapp  v.  Grayson,  2  Blkf.  130;   Mum-  Ind.  334;   Moore  v.  The  State,  65  Ind. 

ford  v.  Thomas,  10  Ind.  167;  Wallace  382;  The  Howe  Machine  Co.  v.  Rebec, 

17.   Morgan,   23   Ind.   399;    Swank   v.  66  Ind.  498;  Wade  v.  Guppinger,  60 

Nichols,  24  Ind.  199;  Hays  v.  Hynds,  Ind.  376. 
28   Ind.  531  ;    Clem   v.  The   State,  31 


XIX.]  THE   TRIAL.  513 

be  reversed  because  of  its  inapplicability  to  the  evidence  unless  it  may 
fairly  be  presumed  to  have  injured  the  party  complaining.0 

In  order  to  show  that  an  instruction  is  not  applicable  to  the  evidence, 
the  record  on  appeal  must  set  out  all  of  the  evidence  given  in  the 
cause,  otherwise,  if  the  instruction  would  have  been  correct  under  any 
supposable  state  of  the  evidence,  the  supreme  court  will  presume  it  to 
have  been  applicable. p 

But  where  the  instruction  must  be  wrong,  under  the  issues,  upon 
any  supposable  state  of  the  evidence,  there  can  be  no  presumption  in 
its  favor,  even  in  the  absence  of  the  evidence. q 

An  instruction  may  be  erroneous  by  reason  of  ambiguity/ 

It  has  been  held  that,  where  the  evidence  was  not  in  the  record,  the 
supreme  court  would  presume  that  an  instruction  given  was  applicable 
to  the  evidence  and  had  an  influence  on  the  verdict.8 

But  by  later  authorities,  the  rule  is  well  established  that  the  pre- 
sumption will  be  such  as  to  uphold  the  verdict,  and  if  to  presume  that 
the  instructions  are  not  applicable  to  the  evidence  will  support  the  ver- 
dict, it  will  be  held  that  no.  available  error  has  been  committed.1 

788.  Must  not  assume  a  fact  to  be  true. — The  rule  that  all 
questions  of  fact  must  be  left  to  the  jury,  and  that  the  court  must  not 
in  the  instructions  assume  a  fact  to  be  true,  or  that  it  has  been  proved 
to  be  true,  or  express  any  opinion  as  to  the  sufficiency  of  the  evi- 
dence, is  well  established  and  strictly  enforced.11 

(o)  Stockton  ».  Stockton,  73  Ind  510.  (s)  Peyton  v.  Bowell,  1   Blkf.  244. 

(p)  Rogers  r.   Lamb,   3  Blkf.  155;  (t)  Audleur  v.  Kuffel,  71  Ind.  543; 

Ruffing  v.  Tilton,  12  Ind.  259  ;  Nev/ton  Dyer  v.  The  State,  74  Ind.  594. 

v.  Mewton,  12  Ind.  527;  List  v.  Korte-  (u)  Hackleman  ».  Moat,  4  Blkf.  164; 

peter.  26  Ind.  27;  Coyner  v.  Lynde,  10  Conaway  v.  Shelton,  3  Ind.  334;  Ball 

Ind.  282;  Cory  v.  Silcox,   6  Ind.  39;  v.  Cox,  7  Ind.  453 ;  Reynolds  v.  Cox,  11 

The  State  t>.  Frazier,  28  Ind.  196;  The  Ind.  262;  Terry  v.  The  State,  13  Ind. 

Columbus,  Chicago,  etc.,  R.  R.  Co.  v.  70;    Larue    v.   Russel,    26    Ind.    386; 

Powell,  Adm'r,  40  Ind.  37;  Miller  r.  Keiser  r.  Yandes,  45  Ind.  174 ;   Barki-r 

Voss,  40  Ind.   307;    Keating  v.  The  v.  The  State,  48  Ind.  163;  Doering  r. 

State,  44  Ind.  449;  The  Aurora  Fire  The   State,   49   Ind.  56;   Mathews   r. 

Insurance  Co.  f.  Johnson,  46  Ind.  315;  Story,  54  Ind.  417;  Broker  v.  Scoby, 

Higbee  v.  Moore,  66  Ind.  263;   Dener-  66  Ind.  583;  Killian  v.  Eigenmann,  57 

line  v.  Gable,  73  Ind.  210;    Davis  v.  Ind.  480;  Snyder  r.  The  State,  59  Ind. 

Foster,  68  Ind.  238;  Hill  v.  Newman,  105;    Black  v.  Duncan,  60   Ind.  522; 

47  Ind.  187;  Stratton  v.  Kennard,  74  Cunningham    v.   The   State,   65   Ind. 

Ind.  302;  Dunkout  v.  Eagle  Machine  377;  Clem  v.  Tlie  State,  31    Ind.  480; 

"Works,  90  Ind.  423.  Moore    v.   The    State,   65    Ind.   382; 

(q)   Murray    v.    Fry,   6    Ind.    371 ;  f  Bradley  v.  The  State,  31  Ind.  492;  Sa- 

Newton  r.  Newton,  12  Ind.  527;  Lind-  ter  v.  The  State,  56  Ind.  378;    Com- 

ley  v.  Dempsey,  45  Ind.  246.  stock  v.  Whitworth,  75  Ind.  129;  Huff- 

(r)  Black  v.  Duncan,  60  Ind.  522.  man  v.  Cauble,  86  Ind.  591 ;  Finch  v. 

Bergins.  89  Ind.  360. 

33  i 


514  THE    TRIAL.  [CHAP. 

But  where  the  evidence  is  all  one  way,  and  about  the  fact  assumed 
to  be  true  there  is  in  fact  no  controversy  in  the  evidence,  the  error  is 
held  to  be  harmless.  And  where  the  fact  assumed  is  necessary  to  make 
out  the  cause  of  action  or  defense  of  the  party  objecting,  he  can  not 
be  heard  to  complain.' 

The  testimony  given  by  a  party  on  the  trial  can  not  be  treated*  in 
the  instructions,  as  an  admission  of  the  facts  to  which  he  testifies.  It 
must  be  regarded  as  evidence  in  the  cause  the  weight  of  which  must 
be  left  to  the  jury.w 

The  court  may,  under  our  practice,  sum  up  the  evidence  in  the 
cause;  but  to  do  so  is  a  dangerous  practice,  as  the  instruction  must  be 
predicated  upon  the  whole  of  the  evidence.  And  it  is  held  that  if  the 
tendency  of  the  instruction  is  to  restrict  the  consideration  of  the  jury 
to  isolated  facts,  to  the  exclusion  of  other  facts,  it  is  an  infringement 
upon  the  province  of  the  jury  and  therefore  erroneous.1 

The  court  must  not,  in  recapitulating  the  evidence,  state  what  it 
proves  but  what  it  conduces  to  prove. y 

It  is  error  for  the  court  to  instruct  the  jury  to  limit  their  inquiries  to 
one  view  of  the  case  when  there  is  any  evidence  before  them  tending 
to  sustain  different  views.2 

789.  "When  the  court  may  instruct  the  jury  to  find  for 
either  party. — The  rule  is  that  where  there  is  any  evidence,  however 
slight,  tending  to  prove  any  fact  essential  to  the  maintenance  of  the 
case,  as  to  that  fact  the  question  as  to  the  sufficiency  of  the  evidence  to 
establish  it  is  for  the  jury,  and  applying  the  same  rule  to  the  whole 
case,  if  there  is  any  evidence,  however  slight,  to  sustain  a  cause  of  ac- 
tion or  defense,  the  question  must  be  left  to  the  jury ;  but  where  there 
is  no  evidence  to  sustain  a  cause  of  action  or  defense  the  court  may, 
and  should  instruct  the  jury  to  find  against  the  party  having  the  bur- 
den of  the  issue.* 

(v)  Morgan  v.  Wattles,  69  Ind.  260.  v.  Doan,  23  Ind.  455 ;  Hynds  v.  Hays, 

(w)  -Mathews  v.  Story,  54  Ind.  417;  25  Ind.  31 ;  Steinraetz  v.  Wingate,  42 

Finch  v.  Bergin,  89  Ind.  360;  Lewis  v.  Ind.  574;  The  Governor,  for  the  use 

Christie,  97  Ind.  377.  of  Newman,  v.  Shelby,  2  Blkf.  26; 

(x). Barker*.  The  State,  48  Ind.  163;  Huff  t>.  Cole,  45  Ind.  300;  Nixon  v. 

Shank  v.  The  State,  25  Ind.  207;  Saw-  Brown,  4  Blkf.  157;  The  State  v. 

yer  v.  The  State,  35  Ind.  80;  McCorcle  Banks,  48  Ind.  197  ;  Dodge  v.  G'tylord, 

v.  Simpson,  42  Ind.  453.  53  Ind.  365;  Moss  v.  The  Witness 

(y)  Ball  v.  Cox,  7  Ind.  453;  Wood  Printing  Co.,  64  Ind.  125;  Beckner  v. 

v.  Deutchman,  75  Ind.  148.  The  Riverside,  etc.,  Turnpike  Co.,  65 

(z)  Longnecker  v.  The  State,  22  Ind.  468;  Vance  v.  Vance,  74  Ind. 

Ind.  247.  370;  Hazzard  v.  The  Citizens'  State 

(a)  Crookshank  v.  Kellogg,  8  Blkf.  Bank,  72  Ind.  130;  AVeis  v.  The  City 

256;  Haynes  v.  Thomas,  7  Ind.  38;  of  Madison,  75  Ind.  241 ;  Wabash  Ry. 

Porter  v.  Millard,  18  Ind.  502;  Sering  Co.  v.  Williamson,  104  Ind.  154. 


XIX.]  THE   TRIAL.  515 

It  is  held  that  where  the  court  would  sustain  a  demurrer  to  the 
evidence  against  a  party,  that  it  is  proper  to  instruct  the  jury  to  find 
against  the  party.b 

790.  Additional  instructions  may  be  given  where  the  jury 
disagrees. — "  Sec.  541.  After  the  jury  have  retired  for  deliberation, 
if  there  is  a  disagreement  between  them  as  to  any  part  of  the  testi- 
mony, or  if  they  desire  to  be  informed  as  to  any  point  of  law  arising 
in  the  case,  they  may  request  the  officer  to  conduct  them  into  court, 
where  the  information  required  shall  be  given  in  the  presence  of,  or 
after  notice  to  the  parties  or  their  attorneys."  c 

This  section  provides  for  the  giving  of  instructions  at  the  request  of  tfie 
jury  upon  any  point  about  which  they  desire  to  be  informed.  The  ad- 
ditional instructions  must  be  given  in  the  presence  of  the  parties,  or 
after  they  have  been  notified  and  given  an  opportunity  to  be  present/ 

It  has  been  held  that  the  court  may  recall  the  jury  and  give  them 
additional  instructions  in  the  absence  of  one  of  the  parties.6 

The  statute  certainly  confers  no  such  power  upon  the  court.  It  is 
expressly  decided  in  the  later  case  of  Jones  v.  Johnson,  that  it  is  error 
to  instruct  in  the  absence  of  either  party  unless  they  have  been-  noti- 
fied to  appear,  but  this  case  was  not  noticed  in  the  opinion. 

Where  the  court  has  been  requested  to  instruct  in  writing,  additional 
instructions  given  under  this  section  should  be  written  and  signed  by 
the  judge. 

791.  Instructions  must  be  numbered. — The  statute  requires 
that  the  instructions  shall  be  numbered/ 

The  object  is  that  the  proper  exceptions  may  be  taken  and  pointed 
out  to  the  supreme  court  by  the  number  of  the  instructions  ex- 
cepted  to.g 

As  the  instructions  must  be  numbered  and  excepted  to  separately, 
they  should  be  made  to  present  to  the  jury,  as  nearly  as  possible,  a 
single  proposition  of  law,  so  that  each,  upon  the  proper  exception,  may 
present  a  single  question.11 

792.  Must  be  settled  before  the  argument  when  requested. 

(b)  Steinmetz  v.  Wingate,  42  Ind.  (e)  Farley  v.  The  State,  57  Ind.  331  ; 
574.  Hall  v.  The  State,  8  Ind.  439. 

(c)  R.  S.  1881,  §  541.  (f)  R.  S.  1881,  §  533,  subs.  4,  5. 

(d)  Jones,    Adm'r,    r.   Johnson,   61  (g)  Coryell  v.  Stone,  62  Ind.  307. 
Ind. '257;  Smith  v.  McMillen,  19  Ind.  (h)  Sherlock  v.  The  First  National 
391;  Blacketer  v.  House,  67  Ind.  414,  Bank  of  Bloomington,  53  Ind.  73. 
417;  Fish  v.  Smith,  12  Ind.  563. 


516  THE  TRIAL.  [CHAP. 

— Either  party  may  "  before  the  commencement  of  the  argument  ten- 
der to  the  court  instructions  in  writing,  properly  numbered,  to  be  given 
to  the  jury,  and  require  the  court  to  indicate  before  the  argument  sucli 
as  will  be  given  by  writing  opposite  each  the  words  '  given,'  '  given  as 
modified  by  the  court,'  or  '  refused.'"' 

The  court  may  hear  argument  upon  the  questions  of  law  presented 
by  the  instructions,  but  the  parties  can  not  be  heard  as  a  matter  of 
right. 

It  is  further  provided  by  the  same  section  of  the  statute  that,  "  the 
court  may,  of  its  own  motion,  and  shall,  upon  application  of  either 
party,  also,  before  the  commencement  of  the  argument,  lay  before  the 
parties  any  instructions,  properly  numbered,  which  it  will  give  to  the 
jury  :  Provided,  the  court  may  give  to  the  jury  such  other  instructions, 
Avith  those  already  approved,  at  the  close  of  the  argument,  as  may  be 
necessary  to  fully  present  the  law  to  the  jury  and  secure  the  ends  of 
justice." 

Under  this  section,  either  party  has  the  right  to  have  all  of  the  in- 
structions settled  before  the  argument  commences,  subject  to  the  right 
of  the  court  to  give  such  additional  ones  as  may  be  necessary. 

The  section  is  defective  in  one  respect.  It  contains  uo  provision  au- 
thorizing the  opposite  party  to  require  that  instructions  asked  by  his 
adversary  may  be  settled  before  the  argument.  A  party  may  ask 
special  instructions  without  requiring  the  court  to  indicate  whether 
they  will  be  given  or  refused,  thus  leaving  the  opposite  party  in  ignor- 
ance of  the  instructions.  While  the  statute  does  not  expressly  require 
that  all  instructions  asked  by  the  parties  shall  be  settled  before  the  ar- 
gument commences,  the  court  should  see  that  this  is  done  where  a  re- 
quest has  been  made  as  to  any  of  them.  The  object  of  the  statute  is 
that  the  parties  may  be  informed,  in  making  the  argument,  what  the 
law  of  the  case  is  as  indicated  by  the  court. 

The  statute  provides  that  the  instructions  to  be  given  may  be  read 
to  the  jury  in  argument  as  the  law  governing  the  case.  Where  the 
law  of  the  case  is  thus  fixed,  whether  the  instructions  are  right  or 
wrong,  the  parties  must  be  bound  by  them  throughout  the  trial,  and 
can  not  attack  them  as  erroneous  in  the  argument. 

The  statute  gives  the  parties  no  right  to  comment  upon  the  instruc- 
tions, favorably  or  unfavorably,  but  they  may  be  read  to  the  jury  and 
the  facts  applied  to  the  law  as  contained  therein. •> 

793.  When   erroneous    instructions    harmless. — It  is  not 

(i)  R.  S.  1881,  ?  534.  (j)  Blizzard  v.  Applegate,  77  Ind. 

576. 


XIX.]  THE   TRIAL.  517 

'every  error  in  the  giving  or  refusing  instructions  that  will  be  cause  for 
reversal.  There  is  much  uncertainty  in  the  decided  cases  as  to  what 
errors  will  be  available  on  appeal.  This  uncertainty  will  always  be 
found  where  an  error  may  be  held  to  be  harmless  or  not,  according  to 
the  judgment  of  the  court  in  the  particular  case,  without  any  fixed  rule 
by  which  the  question  can  be  determined.  In  some  of  the  cases  it  is 
held,  in  general  terms,  that,  in  order  to  reverse  a  cause  on  account  of 
the  giving  of  an  erroneous  instruction,  it  must  appear  that  the  jury 
was  misled  thereby. k  * 

Or  where,  taken  as  a  whole,  it  does  the  party  complaining  no  injury 
or  injustice.1 

Or  where  the  verdict  is  clearly  right  under  the  evidence.™ 

It  is  held  that,  although  part  of  an  instruction,  or  one  of  a  series, 
may  be  erroneous,  if  the  whole  of  the  instructions  taken  together  state 
the  law  correctly  there  is  no  available  error." 

To  refuse  an  instruction  applicable  to  a  supposed  state  of  facts  is  a 
harmless  error  where  the  jury  find  specially  a  different  state  of  facts.0 

The  instructions  should  state  the  law  clearly,  and  if  they,  or  any  of 
them,  are  so  ambiguous  as  to  mislead  or  confuse  the  jury,  the  cause 
should  be  re  versed. p 

794.  How  erroneous  instructions  cured. — It  was  held  in 
some  of  the  earlier  cases  that  an  error,  in  giving  an  erroneous  instruc- 
tion, was  cured  by  a  subsequent  one  stating  the  law,  on  the  same  point, 
correctly. q  But  under  the  later  decisions  it  is  not  sufficient  that  a  cor- 

(k)  Ellison   v.   Dove,   8    Blkf.  571;  v.  The  State,  15  Ind.  190;  Hubbell  v. 

Vanuxen   ».   Rose,   7    Ind.   222;    The  Wolf,  15  Ind.  204;  Burton  v.  Calaway, 

Board  of  Comm'rs  v.  Brewington,  74  20  Ind.  469;  The  Lafayette,  etc.,  R.  R. 

Ind.  7.     See  also  Worley  v.  Moore,  97  Co.  v.  Adams,  26  Ind.  76;  Evansville, 

Ind.  15.  etc.,  R.  R.  Co.  v.  Barbee,  74  Ind.  169. 

(1)  Wood  v.  Commons,  3  Ind.  418;  (n)  Shaw  v.  Saum,  9  fnd.  517;  Rol- 

Hummel  v.  Tyner,  70  Ind.  84;  Felkner  lins  v.  The  State,  62  Ind.  46;  Walker 

v.  Scarlet,  29  Ind.  154;  The  City  of  v.  Heller,  73  Ind.  46;  Garfield  v.  The 

Greencastle  v.   Martin,   74   Ind.  449;  State,  74  Ind.  60;   Brooks  v.  Allen,  12 

Harris  v.  The  State,  30  Ind.  131 ;  Wai-  Ind.  401,  407 ;  Coles  v.  The  State,  76 

lace  v.  Cravens,  34  Ind.  534;  Morford  Ind.  511;    Union  Mut.  L.  Ins.  Co.  v. 

v.  Wood  worth,   7   Ind.  83;    Smith  v.  Buchanan,    100    Ind.   63;    Hodges  v. 

The  State,  28  Ind.  321 ;  Blanchard  v.  Bales,  102  Ind.  494. 

Jones,  101  Ind.  542.  (o)  Beard  v.  Sloan,  38  Ind.  128. 

(m)  Harris  v.  Doe,  4  Blkf.  369;  Bil-  (p)  The  Toledo,  etc.,  R.  W.  Co.  v. 

lingsley  v.  The  State  Bank  of  Indiana,  Shuckman,  50  Ind.  42. 

3  Ind.  375;  Corn  well  v.  Emrie,  4  Ind.  (q)  Gronour  v.  Daniels,  7  Blkf.  108; 

209;  Rogers  v.  Maxwell,  4  Ind.  243;  Fairfield    v.    Browning,   1    Ind.  322; 

Short  v.  Scott,  6  Ind.  430;   Muirhead  Sloo  v.  Roberts,  7  Ind.  128;   Torr  v. 

v.  Snyder,  4  Ind.  486;  The  City  of  Lo-  Torr,  20  Ind.  118;    Bask.  Prac.  289; 

gansport  v.  Dunn,  8  Ind.  378;  Brooster  Biek.  Civil  Prac.  288. 


518  THE   TRIAL.  [CHAP. 

rect  instruction .  is  subsequently  given.  The  erroneous  instruction 
must  be  expressly  withdrawn  from  the  jury/ 

The  rule  thus  established  must  be  taken  in  connection  with  the  one 
that  a  cause  will  not  be  reversed  unless  the  instructions  are  such  as  to 
mislead  the  jury.8 

It  is  difficult  to  see  how  the  court  can  say  that  the  jury  were  not 
misled  where  the  court  has  given  two  inconsistent  instructions. 

There  is  no  way  by  which  it  can  be  determined  whether  the  jury 
4were  influenced  by  the  one  instruction  or  the  t)ther.  In  tire  case  of 
Kirland  v.  The  State,  it  is  said :  "In  placing  a  construction  upon  the 
instruction  complained  of,  it  is  our  duty  to  look  at  all  the  instructions 
given  on  the  same  subject ;  and  if  the  instructions,  taken  together, 
present  the  law  correctly,  and  are  not  calculated  to  mislead  the  jury, 
we  should  affirm  the  judgment. 

"On  the  other  hand,  if  the  two  charges  are  inconsistent  with  each 
other,  if  they  were  calculated  to  confuse  and  mislead  the  jury,  or  if 
they  must  have  left  the  jury  in  doubt  or  uncertainty  as  to  what  was  the 
law  as  applicable  to  the  facts  of  the  case,  then  the  judgment  should  be 
reversed.  The  above  rules  have  been  applied  by  this  court  in  civil 
cases.  The  rule  laid  down  in  criminal  cases  is  as  follows :  'An  er- 
roneous instruction  to  the  jury  in  a  criminal  case  can  not  be  corrected 
by  another  instruction  which  states  the  law  accurately,  unless  the  er- 
roneous instruction  be  thereby  plainly  withdrawn  from  the  jury.'"1 

It  must  be  clear  that  the  giving  of  a  correct  instruction  can  not  cure 
the  error  in  giving  one  that  is  erroneous,  where  there  is  nothing  from 
which  the  jury  can  determine  which  to  rely  upon  as  the  law.WThe  rule 
that  an  error  in  one  instruction  will  not  reverse  a  cause,  if,  taken  as  a 
whole,  the  instructions  state  the  law  correctly,  must  be  confined  to 
cases  where  the  erroneous  instruction  becomes  so  by  a  failure  to  state 
the  law  fully,  or  some  other  such  defect,  which  is  supplied  by  other  in- 
structions, whether  given  before  or  after  it,  and  not  to  cases  where  the 
two  instructions,  upon  the  same  point,  are  inconsistent  or  contradictory. 
In  such  case  it  can  not  be  said  that  the  instructions,  "taken  as  a  whole," 
state  the  law  correctly.  In  some  of  the  cases  it  is  said  that  an  instruc- 
tion may  be  cured  by  the  evidence.11 

(r)  Busk.  Prac.  289;  Bradley  v.  The  what  will  amount  to  such  withdrawal. 

State,  31  Ind.  492,  503;  Clem  v.  The  (s)  Ante,  §  793. 

State,  31  Ind.  480;  Clem  v.  The  State,  (t)  Kirland   v.  The  State,  43    Ind. 

42  Ind.  420;  Kirland  v.  The  State,  43  146,  154;  Bradley  v.  The  State,  31  Ind. 

Ind.   146;    Somers  v.  Pumphrey,    24  492. 

Ind.  231,  237;  Kinsjen  v.  The  State,  45  (u)  Smith  v.  The  State,  28  Ind.  321 ; 

Ind.  518;  The  Toledo,  etc.,  R.  W.  Co.  Kollins  v.  The  State,  02  Ind.  46. 

v.  Shuckman,  50  Ind.  42.     But  see  Me-  (1)  State  v.  Sutton,  99  Ind.  300. 
Crory  v.  Anderson,  103  Ind.  12,  as  to 


XIX.]  THE   TRIAL.  519 

This  is  the  rule,  stated  in  a  different  form,  that  an  erroneous  instruc- 
tion will  not  reverse  a  cause  where  the  verdict  is  clearly  right  under 
the  evidence.* 

EXCEPTIONS   TO   INSTRUCTIONS. 

795.  When  must  be  taken. — Exceptions  to  instructions  given 
or  to  the  refusal  to  give  those  asked,  must  be  taken  before  the  return 
of  the  verdict,  or  objections  thereto  are  waived.™ 

796.  How  to  be  taken. — "Sec.  535.  A  party  excepting  to  the 
giving  of  instructions  or  the  refusal  thereof,  shall  not  be  required  to 
file  a  formal  bill  of  exceptions ;   but  it  shall  be  sufficient  to  write  on 
the  margin,  or  at  the  close  of  each  instruction,  '  refused  and  excepted 
to,'  or  '  given  and  excepted  to,'  which  memorandum  shall  be  signed  by 
the  judge  and  dated. "x 

The  code  of  1852  required  that  the  memoranda  should  be  signed  by 
the  party  taking  the  exception  or  his  attorney. y 

This  section  has  been  so  amended  as  to  require  that  the  exception 
shall  be  "signed  by  the  judge  and  dated." 

If  the  statute  is  not  complied  with,  any  error  committed  in  giving 
or  refusing  instructions  will  not  be  considered  by  the  supreme  court  on 
appeal." 

It  was  held  in  an  early  case  that  it  was  necessary  that  the  exception 
should  be  signed  by  the  judge.8 

In  later  cases  it  was  held  that  the  exception  must  be  signed  by  the 
party  or  his  attorney,  and  the  case  of  Cross  v.  Pearson  was  expressly 
overruled. b 

The  present  statute,  as  we  have  seen,  conforms  to  the  case  first  de- 
cided, and  an  exception  signed  by  the  party  or  his  attorney  would  not 
now  be  available. 

The  statute  provides  another  means  by  which  the  exceptions  may  be 
reserved,  viz.,  by  a  bill  of  exceptions.0 

(v)  Ante,  $  793.  Newby  v.  'Warren,  24  Ind.  161;  Ma- 
(w)   R.  S.  1881,  ?  626;    Roberts  v.  ghee  v.  Baker,  15  Ind.  254;    Bush  v. 
Higgins,  5  Ind.  542;  Jones,  Adm'r,  v.  Durham,  15  Ind.  252;   Wade  v.  Gup- 
Van  Patten,  3  Ind.  107  ;  Wood  v.  Me-  pinger,  60  Ind.  376. 
Clure,  7  Ind.^oo;  Vaughn  v.  Ferrall,  (a)  Cross  v.  Pearson,  17  Ind.  612. 
57  Ind.  182;  Leyner  v.  The   State,  8  ib)  Newby  v.  Warren,  24  Ind.  161; 
Ind.  490;    The   State  v.  Rabourn,  14  Medler  v.  The  State,  26  Ind.  171  ;  The 
Ind.  300.  Jeffersonville,  etc.,   R.   R.  Co.  v.  Cox, 
(x)  R.   S.   1881,  \  535;    Overlin  v.  37  Ind.  325;    Sutherland  v.  Hankins, 
Kronen  burger,  50  Ind.  365.  56  Ind.  343. 

(y)  R.  S.  1876,  p.  168,  §  3'2o.  (c)  R.S.  1881,  §  629;  Newby  v.  War- 

(z)  Led  ley  r.  The  State.  4  Ind.  580;  ren,  24   Ind.   161 ;   Burk  v.  Andis,  98 

Ind.  59. 


520  THE  TRIAL.  [CHAP. 

One  or  the  other  of  these  modes  of  excepting  must  be  followed  to 
make  the  objection  available.*1 

Under  the  old  code  it  was  held  that,  where  instructions  were  given 
by  the  judge  and  not  signed  by  him,  the  only  way  in  which  the  ex- 
ception could  be  taken  was  by  a  bill  of  exceptions.  The  memoranda 
of  an  exception,  signed  by  the  party  or  his  attorney,  was  held  to  be 
insufficient.6 

But,  under  the  present  statute,  where  the  exception  must  be  signed 
by  the  judge,  the  exception  provided  for  by  section  535  should  be  suf- 
ficient, whether  the  instructions  are  signed  or  not.  The  signature 
should  be  as  binding  to  the  memoranda  of  the  exception  as  to  the  bill 
of  exceptions. 

Where  there  are  several  instructions,  embracing  different  proposi- 
tions, the  exceptions  should  be  made  to  each  separately/ 

797.  The  jury  may  view  property  or  place. — The  jury  may 
be  sent,  under  the  charge  of  a  sworn  officer,  to  view  either  real  or  per- 
sonal property  in  controversy,  or  the  place  Avhere  an  act  is  charged  to 
have  been  committed,  or  the  location  of  the  ground,  as  in  case  of  the 
location  of  public  highways.  The  court  may  appoint  some  person  to 
point  out  the  property  or  the  place,  and  no  other  person  than  the  offi- 
cer and  the  person  thus  appointed  shall  be  allowed  to  speak  to  them 
upon  any  matter  connected  with  the  trial.3 

The  question  whether  the  jury  shall  be  allowed  to  view  the  property 
«>r  place  is  a  matter  within  the  discretion  of  the  court,  and  is  only  au- 
thorized when,  "  in  the  opinion  of  the  court,  it  is  proper. "h 

In  some  of  the  earlier  cases  it  was  held  that  the  impression  produced 
upon  the  minds  of  the  jury  by  an  examination  of  the  premises  must 
be  regarded  as  a  part  of  the  evidence.' 

But  these  cases  have  been  overruled.  The  established  rule  is,  that 
the  view  authorized  by  the  statute  is  only  for  the  purpose  of  aiding 
the  jury  to  arrive  at  a  better  understanding  of  the  evidence  given  at 
the  trial,  and  that  the  impression  produced  by  an  inspection  of  the 
premises  constitutes  no  part  of  the  evidenced 

(d)  Trogden    v.   Deckard,    45    Ind.         (g)  K.   S.    1881,    \   538;     Erwin    o. 
572;    Emmons   v.   Newman,   38   Ind.     Bulla,  29  Ind.  95. 

372;  Mendenhall  v.  Treadway,  44  Ind.  (h)  Coyner  v.  Boyd,  55  Ind.  166. 

131;   Burk  v.  Andis,  98  Ind.  59;  Olds  (i)  The     Evansville,     Indianapolis, 

v.  Deckman,  98  Ind.  162;  Eslinger  v.  etc.,  K.  R.  Co.  v.  Cochran,  10  Ind.  560; 

East,  100  Ind.  434.  Hagee  v.  Grossman,  01  Ind.  223. 

(e)  Dix  v.  Akers,  30  Ind.  431 ;  Etter  (j)  Jefferson vi lie,    Madison,  etc.,  R. 
v.  Armstrong,  46  Ind.  197.  R.  Co.  v.  Rowen,  40  Ind.  545;  Gagg  v. 

(f)  Elliott   v.   Woodward,    18    Ind.  Vettor,   41    Ind.  228,  258;    Heady  v. 
183;  Garrigusv.  Burnett,  9  Ind.  528;  The  Vevay,  Mt.  Sterling,  etc.,  Turn- 
Sherlock  v.  The  First  National  Bank 

of  Bloomington,  53  Ind.  73. 


XIX.]  THE   TRIAL.  521 

798.  The  jury  must  be  cautioned  when  allowed  to  sepa- 
rate.— The  statute  makes  it  the  duty  of  the  court  to  admonish  the 
jury  that  it  is  their  duty  "  not  to  converse  with  each  other  or  suffer 
themselves  to  be  addressed  by  any  other  person   on  any  subject  of  the 
trial,  and  during  the  trial  that  it  is  their  duty  not  to  form  or  express 
among  themselves  an  opinion  thereon  until  the  cause  is  finally  sub- 
mitted to  them."k 

It  is  held  that  the  question  whether  the  jury  shall  be  allowed  to  sep- 
arate or  not  is  within  the  discretion  of  the  court.1 

It  is  the  imperative  duty  of  the^court  to  admonish  the  jury  at  each 
separation,  but  the  objection  to  their  separation  without  the  instruc- 
tions required  by  the  statute  must  be  made  at  the  time  or  it  is  waived. 
It  is  too  late  to  except  at  the  next  calling  of  the  cause.™ 

It  will  be  presumed  by  the  supreme  court  that  the  jury  have  been 
properly  admonished  where  there  is  no  showing  to  the  contrary  in 
the  record." 

799.  "What  papers  may  be  taken  to  the  jury-room. — The 
jury  must  depend  upon  their  recollection  of  the  evidence  as  it  is  given 
upon  the  trial  in  arriving  at  a  verdict.0 

In  the  case  of  Cheek  v.  The  State  it  is  said :  "  The  juror  is  to  reg- 
ister the  evidence,  as  it  is  given,  on  the  tablets  of  his  memory  and 
not  otherwise.  Then  the  faculty  of  the  memory  is  made,  so  far  as  the 
jury  is  concerned,  the  sole  depository  of  all  the  evidence  that  may  be 
given,  unless  a  different  course  be  consented  to  by  the  parties  or  the 
court.  The  jury  should  not  be  allowed  to  take  the  evidence  with  them 
to  their  room  except  in  their  memory.  It  can  make  no  difference 
whether  the  notes  are  written  by  a  juror  or  by  some  one  else.  Jurors 
would  be  too  apt  to  rely  on  what  might  be  imperfectly  written,  and 
thus  make  the  case  turn  on  a  part  only  of  the  facts." 

The  case  quoted  from  was  one  where  a  juror  had  taken  notes  of  the 
evidence  during  the  trial.  The  rule  laid  dawn  applies  equally,  how- 
ever, to  a  case  where  the  jury  are  permitted  to  take  a  part  of  the  evi- 
dence to  the  jury-room.  It  is  proper  that  the  pleadings  should  be  taken 
by  the  jury,  and  the  exhibits  attached  thereto,  although  they  may 
have  been  used  as  evidence  in  the  cause,  being  part  of  the  pleadings, 

pike  Co.,  52  Ind.  117;  The  Pittsburgh,  Eush   v.   Pedigo,   63    Ind.  479;    B.  S. 

Ft.  Wayne,  etc.,  R.  R.  Co.  v.  Swinney,  1881,  ?  539. 

59  Ind.  100.  (m)  Musselman    v.    Pratt,    44    Ind. 

(k)  R.   S.   1881,   §540;    Crocker   v.  126;  Crocker  v.  Hoffman,  48  Ind.  207; 

Hoffman,  48  iiul.  '!•  '7.  Rush  v.  Pedigo,  63  Ind.  479. 

(1)  Crocker  v.  Hoffman,  48  Ind.  207 ;  (n)  Evans  v.  The  State,  7  Ind.  27J. 

(o)  Cheek  v.  The  State,  85  Ind.  492. 


522  THE   TRIAL.  [CHAP. 

may  properly  go  to  the  jury-room. p  But  with  this  exception  uo  part 
of  the  evidence,  or  copies  of  any  writings  introduced  in  evidence,  can 
properly  be  in  the  possession  of  the. jury  after  they  retire  to  deliberate 
upon  their  verdict,  except  by  consent  of  the  parties.*1 

The  statute  of  1843  gave  the  court  the  right  to  determine  what 
papers  should  be  taken  from  the  bar  to  their  room  by  the  jury/ 

Neither  the  presf-nt  statute  nor  the  code  of  1852  contains  any  such 
provision. 

In  the  case  of  Nichols  v.  JThe  State,  it  was  claimed  by  the  appellee 
that  the  provision  contained  in  the  statute  of  1843  was  continued  in 
force  by  section  802  of  the  code  of  1852, 8  but  the  supreme  court  held 
otherwise.  Section  802  is  not  a  part  of  the  statute  of  1881. 

It  was  held  in  an  early  case  that  it  was  not  error  to  permit  the  jury 
to  take  to  their  room  an  estimate  of  counsel  as  to  what  was  due  to  the 
plaintiff.* 

But  this  case  is  against  the  great  weight  of  authority,  and  must  be 
regarded  as  overruled.  While  the  later  decided  cases  in  this  state  are 
uniform,  that  it  is  error  to  allow  the  jury  to  take  any  of  the  evidence, 
in  their  retirement,  it  has  been  held  in  some  of  the  cases  that  it  must 
appear  that  the  jury  made  some  use  of  the  evidence  that  might  reason- 
ably have  influenced  them  in  arriving  at  a  verdict."  And  where  the 
complaining  party  could  not  have  been  injured  by  the  jury  having  the 
evidence  before  them  there  is  no  available  error." 

It  has  been  held  that  while  the  jury  can  not  be  allowed  to  have  the 
evidence  in  their  room,  they  may  be  returned  into  court  and  have  a 
part  of  the  evidence  read  to  them.w 

The  wisdom  of  this  rule  may  well  be  doubted.  If  the  jury  are  re- 
quired to  depend  upon  their  memory  for  a  part  of  the  evidence,  they 
should  be  as  to  all  of  it.  To  allow  a  part  to  be  read  the  second  time, 
is  calculated  to  fasten  such  evidence  upon  their  minds  to  the  exclusion 
of  other  facts  proved,  it  may  be  by  parol,  and  necessarily  gives  undue 
prominence  to  a  part  of  tiie  facts.  No  greater  injury  would  be  likely 
to  result  from  the  jurors  reading  a  deposition  or  other  written  evidence, 
than  from  hearing  it  read  after  the  close  of  the  trial. 

(p)  Snyder  v.  Braden,  58  Ind.  143,  (r)  R.  S.  1843,  p.  734,  §  332;   Waltz 

Summers  v.  Greathouse,  87  Ind.  205 ;  v.  Robertson,  7  Blkf.  499. 

Shulse  v.  McWilliams,  104  Ind.  512.  (a)  See  Bicknell's  Civil  Prac.,  p.  291. 

(q)  Chance  u.The  Indianapolis,  etc.,  (t)  Alexander  v.  Dunn,  5  Ind.  122. 

G.  R.  Co.,  32  Ind.  472;   Eden  v.  Lin-  (u)  Berschv.  The  State,  13  Ind.  434; 

genfelter,  39  Ind.  19;  Lotz  v.  I>riggs,  Ball  v.  Carley,  3  Ind.  577. 

50  Ind.  346;  Nichols  v.  The  State,  65  (vi  Collins  r.  Frost,  54  Ind.  242. 

Ind.  512;  Toohy  v.  Sarvis,  78  Ind.  474.  ,  \O  Kch-n  r.  Lingenfelter,  39  Ind.  19. 


XIX.]  THE   TRIAL.  52.J 

The  rule  that  excludes  the  evidence  from  the  jury -room,  applies  also 
to  the  law  of  the  case,  whether  contained  in  the  instructions  of  the 
court  or  in  books. x 

800.  Polling  the  jury. — At  common  law,  the  privilege  of  polling 
the  jury  could  not  be  claimed  as  a  right,  but  might  be  permitted  in  the 
discretion  of  the  court.     Under  the  statute  in  this  state  the  right  is 
expressly  given,  and  to  refuse  it  is  error. y 

The  examination  of  each  juror  must  be  confined  to  the  simple  in- 
quiry, "  Is  this  your  verdict  ?  "z 

The  object,  of  polling  the  jury  is  to  ascertain  whether  the  verdict  re- 
turned by  the  foreman  is  concurred  in  by  the  others,  and  it  is  expressly 
provided  by  the  statute  that  "if  any  juror  dissent  from  the  verdict 
they  shall  again  be  sent  out  to  deliberate." 

Whether  the  juror,  when  inquired  of,  agrees  to  or  dissents  from  the 
verdict,  the  grounds  upon  which  he  does  so  can  not  be  inquired  about. 
The  question  whether  the  verdict  shall  stand,  or  the  jury  be  returned 
to  deliberate  farther,  must  depend  upon  the  single  question  and  the 
answer  thereto.8 

801.  When  the  jury  may  be   discharged. — "Sec.  542.  The 
jury  may  be  discharged  by  the  court  on  account  of  the  sickness  of  a 
juror,  or  other  accident  or  calamity  requiring  the  discharge,  or  by  con- 
sent of  both  parties,  or  after  they  have  been  kept  together  until  it  sat- 
isfactorily appears  that  there  is  no  probability  of  their  agreeing. "b 

It  was  held  in  an  early  case  that,  where  a  jury  had  been  impaneled 
and  allowed  to  separate  until  the  next  day  and  one  of  the  jurors  failed 
to  appear,  it  was  not  error  to  discharge  the  jury  and  impanel  another.0 

The  adjournment  of  the  court  where  the  jury  has  a  cause  under  de- 
liberation has  the  effect  to  discharge  the  jury.d 

The  discharge  of  a  jury,  although  erroneous,  does  not  discontinue 
the  cause.  It  stands  upon  the  docket  for  trial,  and  a  second  jury  may 
be  impaneled  and  the  trial  proceeded  with.6 

The  statute  provides  that  the  cause  may  be  tried  again  immediately 
or  at  a  future  time,  as  the  court  may  direct/ 

(x)  Smith  v.  M<?Millen,  19  Ind.  391;         (a)  Mitchell  v.  Parks,  26  Ind.  354, 

Hall  v.  The  State,  8  Ind.  439;  Fish  v.  361. 
Smith,  12  Ind.  .563;   Xewkirk  v.  The        (b)  R.  S.  1881,  §  542. 
State,  27  Ind.  1.  (c)  Harris  r.  Doe,  4  Blkf.  369;  Ash- 

(y)  R.  S.  1881,  I  544.  baugh  v.  Edgecombe,  13  Ind.  466. 

(z)  Mitchell  v.  Parks,  26  Ind.  354;         (d)  Ashbaugh  v.  Edgecombe,  13  Ind. 

Bowen  v.  Bowen.  74  Ind.  470 ;  1  Bish.  466. 

Grim.  Proced.,  §  880.  (e)  Maynard  v.  Black,  41  Ind.  310. 

(f)  R.  S.  1 881,  g  543. 


524  THE   TRIAL.  [CHAP. 

TRIAL  BY  THE   COURT. 

802.  Governed  by  same  rules  as  trial  by  jury. — "Sec.  552. 
The  provisions  of  this  code  respecting  trials  by  jury  apply,  so  far  as 
they  are  applicable,  to  trials  by  the  court."8 

Ordinarily,  there  is  no  material  difference  in  the  rules  regulating  the 
trial  by  jury  and  by  the  court.  The  rules  of  evidence  are  the  same,  and 
the  trial,  up  to  the  submission  of  the  cause,  is  governed  by  the  same 
rules.  The  material  difference  is  in  the  finding,  the  manner  of  obtain- 
ing a  special  finding  from  the  court  and  its  effect  being  essentially  dif- 
ferent from  that  of  a  special  verdict  or  special  findings  by  a  jury. 

803.  Special   finding. — The  statute  provides:  "Upon  trials  of 
questions  of  fact  by  the  court,  it  shall  not  be  necessary  for  the  court 
to  state  its  finding,  except  generally,  for  the  plaintiff  or  defendant,  un- 
less one  of  the  parties  request  it  with  a  view  of  excepting  to  the  decis- 
ion of  the  court  upon  the  questions  of  law  involved  in  the  trial,  in 
which  case  the  court  shall  first  state  the  facts  in  writing  and  then  the 
conclusions  of  law  upon  them,  and  judgment  shall  be  entered  accord- 
ingly."* 

Under  this  statute  it  has  been  held  that,  in  order  to  make  a  special 
finding  effective  and  to  present  the  questions  of  law  arising  thereon  to 
the  supreme  court  for  review,  four  things  must  concur: 

First.  One  of  the  parties  must  request  the  court  to  find  the  facts 
specially  with  the  view  of  excepting  to  the  decision  of  the  court  \ipon 
the  questions  of  law  involved  in  the  trial. 

Second.  The  court  must  state  the  facts  in  writing. 

Third.  The  conclusions  of  the  court  upon  the  questions  of  law  arising 
upon  the  facts  found  must  be  stated,  and  judgment  must  be  entered 
accordingly. 

Fourth.  There  must  be  an  exception  to  the  decision  of  the  court.1 

804.  Must  be  at  the  request  of  one  or  both  of  the  parties. 
— The  court  can  not  find  the  facts  specially  upon  its  own  motion. 

The  statute  provides  that  it  shall  be  unnecessary  unless  requested  by 
one  of  the  parties,  and  the  supreme  court  has  held  tha^t  without  such  a 
request  a  finding,  special  in  form,  and  so  intended,  must  be  treated  a* 
a  general  finding  for  the  plaintiff  or  defendant,  as  the  case  may  be.j 

(o-)  R.  S.  1881,  ?  552.  The  Montgomery  Gravel  Road  Co.  v. 
(h)  II.  S.  1881,  ?  551.  Hock,  41  Ind.  263;  Hasselman  r.  Al- 
ii) Cruzan  v.  Smith,  41  Ind.  288,  len,  42  Ind.  257 ;  Rose  v.  Duncan,  43 
292;  Vol.  3,  p.  428.  Ind.  512;  The  Board,  etc.,  of  Tippe- 
(j)  Nash  v.  Cay  wood,  39  Ind.  457;  canoe  County  v.  Reynolds,  44  Ind.  509; 


XIX.]  THE   TRIAL.  52.") 

The  request  should  be  made  in  time  to  give  the  court  an  opportunity 
to  prepare  the  finding,  and  comes  too  late  after  the  court  has  com- 
menced to  render  judgment. k 

The  statute  does  not  require  that  the  request  shall  be  in  writing ; 
but  it  is  necessary  that  the  record,  on  appeal,  shall  show  that  the  re- 
quest was  made,  and  the  safer  practice  is  to  file  a  written  request  that 
the  court  find  the  facts  specially  and  the  conclusions  of  law  thereon. 

805.  Must  be  in  writing,  and  should  be  signed   by  the 
'judge. — The   special    findings,    and   the   conclusions  of   law   based 
thereon,  must  be  in  writing  and  signed  by  the  judge,  or  set  out  in  a 
bill  of  exceptions,  or  made  part  of  the  record  by  order  of  court,  other- 
wise they  can  not  be  considered  in  the  supreme  court,  and  no  excep- 
tion can  properly  be  taken  thereto.1 

Where  the  special  finding  and  conclusions  of  law  are  signed  by  the 
judge,  they  become  a  part  of  the  record  in  a  cause  without  a  bill  of 
exceptions."1 

But  where  they  are  not  signed,  a  bill  of  exceptions,  or  an  order 
making  them  a  part  of  the  record,  is  necessary.  The  signature  of  the 
judge  to  the  bill  of  exceptions  is  sufficient  authentication  of  the  special 
finding. 

The  statute  provides  that  papers,  not  made  part  of  the  record  by  the 
statute,  may  become  a  part  of  the  record  by  an  order  of  court  made 
on  the  motion  of  either  party." 

806.  Must  contain  the  facts,  not  evidence. — It  is  not  proper 
that  a  special  finding  should  contain  any  of  the  evidence.     It  should 
find  the  facts  established  by  the  evidence.0 

And  where  there  is  any  evidence  pertinent  to  an  issue  the  court 
must  find  that  it  did  or  did  not  exist.  If  the  evidence  is  evenly  bal- 

Conwell  v.  Clifford,  45  Ind.  392;  "Wes-  Jeffries,  25  Ind.  376;  The  Board,  etc., 
ton  v.  Johnson,  48  Ind.  1;  Shane  v.  v.  Reynolds,  44  Ind.  509;  Con  well  v. 
Lowry,  48  Ind.  205;  Smith  v.  Tate-  Clifford,  45  Ind.  392;  Smith  r.  David- 
man,  72  Ind.  171;  Haynie  f.  Johnson,  son,  45  Ind.  39G;  Shane  v.  Lowry,  48 
72  Ind.  394;  The  Grover  &  Baker  Ind.  205;  Roberts  v.  Smith,  34  Ind. 
Sewing  Machine  Co.  r.  Barnes,  49  Ind.  650;  Vol.  3,  p.  428. 
136;  llennicktj.  Chandler,  59  Ind.  354;  (m)  Button  v.  Ferguson,  11  Ind.  314. 
Northcutt  v.  Buckle*,  00  Ind.  577.  (n)  R.  S.  1881,  §  650;  Busk.  Prac., 

(k)  Moore  r.  Barnett,  17  Ir.d.  349.  p.  206. 

(1)  "Welborn  v.  Lewis,  42  Ind.  363;  (o)  Tousey  v.   Lockwood,    30    Ind. 

The  Peoria  Marine,  etc.,  Insurance  Co.  153;   Davis  v.  Franklin,  25  Ind.  407; 

r.  AValser,  22  Ind.   73,  86;   Smith  v.  Kealing    v.   Vansickle,   74   Ind.   529; 

Vol.  3,  pp.  428,  429. 


526  THE   TRIAL.  [CHAP. 

anced  the  court  should  find  against  the  party  having  the  burden  of 
the  issue. p 

807.  Must  contain  all  the  facts  necessary  to  a  recovery. — 
It  is  not  only  necessary  that  the  special  finding  shall  contain  the  facts, 
but  it  must  contain  all  the  facts  necessary  to  a  recovery  by  the  party 
in  whose  favor  the  conclusions  of  law  are  found.q 

And  on  appeal  all  facts  not  embraced  in  the  special  finding  will  be 
regarded  as  not  proved  by  the  party  having  the  burden  of  the  issue/ 

Where  the  finding  supports  one  paragraph  of  a  pleading,  and  not 
others,  the  conclusions  of  law  should  so  state,  and  judgment  should  be 
rendered  as  upon  the  paragraph  supported  by  the  finding,  and  the 
amount  of  the  recovery  can  not  exceed  the  amount  shown  therein  to 
be  due.8 

If  the  court  has  omitted  to  find  upon  any  of  the  issues  in  the  cause, 
the  finding  may  be  amended  at  any  time  during  the  term.' 

808.  Only  facts  within  the  issues  should  be  included  in 
the  finding. — In  the  finding  of  the  facts,  the  court  should  include 
only  such  facts  as  are  within  the  issues,  and  where  facts  are  found  out- 
side of  the  issues  presented  by  the  pleadings  they  can  not  be  considered 
for  any  purpose. u 

809.  Exception  must  be  to  the  conclusions  of  law. — Where 
the  party  against  whom  the  finding  is  rendered  desires  to  reserve  the 
question  presented  thereby,  he  must  except  to  the  conclusions  of  law 
and  not  to  the  finding/ 

No  question  can  be  presented  to  the  supreme  court  upon  the  correct- 
ness of  the  conclusions  of  law  by  a  motion  for  a  new  trial,  or  by  a  mo- 
tion for  judgment  on  the  special  findings.* 

An  exception  being  taken  to  the  conclusions  of  law  in  the  court 

(p)  GulSck  v.  Connelly,  42  Ind.  134;  (t)  Gulick  r.  Connelly,  42  Ind.  134. 

Ex  parte  Walls,  73  Ind.  95,  110.  (u)  Ex  parte  Walls,  73  Ind.  95. 

(q)  Stropes  v.  The  Board  Comm'rs  (v)   Lynch  r.  Jennings,  43  Ind.  276; 

of  Greene  County,  72  Ind.  42  ;  The  Ga-  Smith     v.    Davidson,     45     Ind.    396; 

zette  Printing  Co.v.  Morse,  60  Ind.  153.  Grimes  r.  Duzan,  32  Ind.  361 ;  The  O. 

(r)  Vannoy  v.  Dupraz,  72  Ind.  26;  &  M.  R.  K.  Co.  v.  Hays,  35  Ind.  173; 

Graham  v.  The  State,  66  Ind.  386;  Ex  Montgomery  Gravel  Road  Co.  v.  Rock, 

parte  WTalls,  73  Ind.  95,  110;  Stumph  41  Ind.  263;  Vol.  3,  pp.  428,  429. 

v.  Bauer,  76  Ind.  157;  Jones  v.  Baird,  (w)  Schmitz    v.    Lauferty,   29   Ind. 

76    Ind.  164;    Williams   v.   Osbon,    75  400;  Lynch  v.  Jennings,  43  Ind.  276, 

Ind.  280.  284;  Montgomery  Gravel  Eoad  Co.  r. 

(s)   Helms  v.   Reams,  40  Ind.  124;  Rock,  41  Ind.  263;   Martin   e.  Cauhle, 

Busk.  Prac.  205;  Martin  c.  Cauble,  72  72  Ind.  67. 
Ind.  67. 


XIX.]  THE   TRIAL.  %  527 

below,  the  question  is  presented  to  the  supreme  court  by  an  assign- 
ment of  error  that  the  court  erred  in  its  conclusions  of  law.1 

810.  Does  not  waive  motion  for  new  trial  or  for  a  venire  de 
novo. — If  the  complaining  party  desires  to  contest  the  question, 
whether  the  facts,  as  found  by  the  court,  are  supported  by  the  evidence, 
this  must  be  done  by  a  motion  for  a  new  trial,  assigning  as  a  reason 
that  the  special  finding  is  not  supported  by  sufficient  evidence.? 

If  there  is  proof  pertinent  to  any  issue,  upon  which  the  court  ought 
to  have  found  facts  which  are  not  found,  the  remedy  is  by  a  motion  for 
a  new  trial,  on  the  ground  that  the  finding  is  contrary  to  law.2 

An  exception  taken  to  the  conclusions  of  law,  admits  the  facts 
to  be  correctly  found,  so  far  as  the  particular  question  of  the  correct- 
ness of  the  conclusions  of  law  is  concerned,  but  no  farther." 

Where  the  findings  of  facts  are  too  vague  and  uncertain  to  be  under- 
stood, the  proper  remedy  is  by  a  motion  for  a  venire  de  novo.b 

But  the  omission  to  find  upon  any  issue  is  not  cause  for  a  venire  de  novo.c 

InExparte  Walls,  the  rule  is  thus  stated:  "  It  is  not  the  office  of 
a  special  verdict  or  finding  to  find  expressly  upon  the  issues,  but  only 
to  find  the  facts  proven  within  the  issues.  The  inevitable  corollary 
proposition  is,  that,  if  the  special  finding  or  verdict  is  silent  in  refer- 
ence to  any  fact  or  issue,  such  silence  is  not  an  omission  apparent  on 
the  record  which  can  be  ground  for  granting  a  venire  de  novo.  If,  in 
fact,  there  was  proof  pertinent  to  any  issue,  on  which  the  court  ought 
to  have  found  facts  which  are  not  found,  the  remedy  must  be  by  mo- 
tion for  a  new  trial,  on  the  ground  that  the  finding  is  contrary  to  law. 
If  pertinent  and  material  facts  are  proven,  but  the  court  does  not  find 
upon  them,  and  thereby  impliedly  finds  that  they  are  not  proven,  the 
fiuding  in  such  respect  is  clearly  contrary  to  law,  and  there  is  good  L\  j  ' 
cause  for  a  new  trial  but  notj^ a  new_jgmre. " 

By  excepting  to  the  conclusions  of  law,  a  party  does  not  waive  the 
right  to  contest  the  correctness  of  the  finding,  either  by  a  motion  for  a 
new  trial,  or  by  a  motion  for  a  venire  de  novo.  He  may  except  to  the 
conclusions  of  law,  and  at  the  same  time  move  for  a  new  venire  on  the 
ground  that  the  finding  is  too  vague  and  indefinite  to  be  understood,  J  I 

.      (x)  Cruzun   v.  Smith,  41   Ind.  288;  (a)  Cruzan   v.  Smith,  41    Ind.  288, 

Busk.   Prac.,   p.  205,    and   authorities  293;  Kobinson  v.  Snyder,  74  Ind.  110. 

cited.     See,  also,  cases  cited,  supra.  (b)   Busk.  Prac.  206;   Peters  v.  Lane, 

(y)  The  Montgomery  Gravel  K.  Co.  55  Ind.  391 ;  Leeds  v.  Boyer,  59  Ind. 

v.  Rock,  41  Ind.  263;  Kobinson  v.  Sny-  289;  Merick  v.  The  State,  63  Ind.  327. 

der,  74  Ind.  110.  (c)  Graham   r.  The   State,  (K   Ind. 

(z)  Ex  parte  Wall?,  73  Ind.  95,  110.  386;   Ex  parte  Walls,  73  Ind.  95,  110; 

Jones  r.  Baird,  76  Ind.  164. 


528  THE    TRIAL.  [CHAP. 

and  move  for  a  new  trial  on  the  ground  either  that  the  finding  of  the 
facts  is  not  supported  by  sufficient  evidence,  or  is  contrary  to  law,  and 
all  of  these  questions  may  be  presented  on  appeal. d 

TRIAL  BY   AGREED   CASE. 

811.  The  statute. — "  Sec.  553.  Parties  shall  have  the  right  in  all 
cases,  either  with  or  without  process,  by  agreement  to  that  effect,  to 
submit  any  matter  of  controversy  between  them  to  any  court   that 
would  otherwise  have  jurisdiction  of  such  cause  upon  an  agreed  stato 
ment  of  facts,  to  be  made  out  and  signed  by  the  parties  ;  but  it  must 
appear  by  affidavit  that  the  controversy  is  real  and  the  proceedings  in 
good  faith  to  determine  the  rights  of  the  parties ;  whereupon  the  court 
shall  proceed  to  try  the  same,  and  render  judgment  as  in  other  cases."6 

812.  Affidavit  necessary  to  give  the  court  jurisdiction. — 
The  statute  imperatively  requires  that  an  affidavit  shall  be  made  show- 
ing that  the  controversy  is  real  and  the  proceedings  in  good  faith  to 
determine  the  rights  of  the  parties ;  and  the  supreme  court  has  held 
that,  without  such  an  affidavit,  the  court  has  no  jurisdiction.1 

813.  Statement  of  facts  must  show  a  cause  of  action.— 
Under  this  statute  the  agreed  statement  of  facts  takes  the  place  of  the 
pleadings,  and  must  necessarily  be  sufficient  to  uphold  a  judgment.  ^1; 
For  this  reason,  it  is  held  that  the  statement  of  facts  must  show  a  cause 
of  action  in  favor  of  one  or  the  other  of  the  parties.8 

TRIAL    BY    REFEREES. 

814.  What  may  be  referred. — "  Sec.  556.  All  or  any  of  the  is- 
sues in  the  action,  except  in  actions  for  divorce  and  for  the  nullification 
of  marriages,  whether  those  issues  be  of  fact  or  of  law,  or  both,  may 
be  referred  upon  the  written  consent  of  both  parties."1* 

In  order  to  authorize  a  reference  under  this  statute  there  must  be 
adverse  parties  and  a  suit  pending.' 

The  statute  expressly  authorizes  the  reference  of  all  of  the  issues  or 
only  a  part  thereof.  In  either  case  the  parties  must  file  their  written 
consent,  and  where  a  part  only  of  the  issues  are  to  be  referred  the 

(d)  Jenkins  v.  Parkhill,  25  Ind.  473 ;  (1)  "Warrick   liuilding,  etc.,  Ass'n  v. 
Robinson    v.    Snyder,    74    Ind.    110;  Houghland,  90  Ind.  115;  Pennsylvania 
Brannon  v.  May,  42  Ind.  92.  Co.  v.  Niblack,  99  Ind.  149. 

(e)  R.S.  1881,  $658.  (g)  Gregory  v.  Perdue,  29  Ind.  66. 

(f )  ISharpe   v.   Sharpe's    Adm'r,    27  (h)  R.  8.  1881,  §  556. 

Ind.   507;    Manchester   v.   Dodge,   57         (i)  Gilmore  y.  The  Board  of  Comm'ra 
Ind.  584;  Godfrey  r.  Wilson,  70  Ind.     of  Putnam  Co.,  35  Ind.  344. 
50;  Ante,  §§  249,  73(5. 


XIX.]  THE   TRIAL.  529 

consent  filed  should  clearly  designate  such  issues.  It  has  been  inti- 
mated by  the  supreme  court  that  an  order  of  record  might  constitute 
a  sufficient  written  consent,j  but  it  is  evident  that  such  was  not  the  in- 
tention of  the  legislature. 

815.  How  referees  selected. — The   parties  may  agree  upon  a 
referee  or  referees  not  exceeding  three  in  number.      If  they  fail  to 
agree  the  court  must  appoint  not  exceeding  three  referees,  who  must 
be  free  from  exception.11 

816.  The  trial  conducted  the  same  as  a  trial  by  the  court. 
— "Sec.  557.  The  trial  by  referees  is  conducted  in  the  same  manner 
as  a  trial  by  the  court.     They  have   the   same   power  to   grant  ad- 
journments as  the   court   upon   such    trial.     If  required   they  must 
state  the  facts  found  and  the  conclusions  of  law  separately,  and  their 
decision  must  be  given,  and  may  be  excepted  to  and  reviewed  in  like 
manner."     The  making  of  the  issues  should  not  be  referred.  (1) 

The  trial  under  this  section  should  be  conducted  the  same  as  a  trial 
before  the  court. 

817.  Nature    and    effect   of    referees'    report. — The   statute 
clearly  contemplates  that  the  finding  of  the  referees  shall  be  general 
and  have  the  same  effect  as  a  general  finding  by  the  court ;  but  either 
party  may  request  that  a  special  finding  of  the  facts  shall  be  made, 
and  the  conclusions  of  law  thereon.     When  such  a  request  is  made 
it  must   be   complied  with,  and  the  finding  and  conclusions  of  law 
will  have  the  same  effect,  and  must  be  excepted  to  in  the  same  manner 
as  if  made  by  the  court.™ 

It  is  said  in  Way  v.  Fravel  that  the  better  practice  is  to  have  the 
order  of  reference  require  a  special  finding,  if  one  is  desired,  but  that 
the  request  may  properly  be  made  to  the  referees  without  such  order. 

818.  How  exceptions  must  be  taken. — All  questions  arising 
upon  the  trial  must  be  excepted  to  before  the  referees  at  the  time,  and 
where  a  bill  of  exceptions  is  necessary  to  present  the  question  on  ap- 
peal the  bill  of  exceptions  must  be  signed  and  sealed  by  the  referees." 

(j)  Goodwiner.  Hedrick,  24Ind.  121.  ley,  7   Ind.  49;  Boush  v.  Emerick  80 

(k)  R.  S.  1881,  §  558.  Ind.  551. 

(1)   R.  S.  1881,  §  557.  (n)  Way  v.  Fravel,  61  Ind.  162;  The 

(1)  Beard  v.  Hand,  88  Ind.  183.  Board  of"  Trustees,  etc.,  v.  'Huston,  12 

(no)  Gilmore     v.     The     Board      of  Ind.  276;  Ware  v.  Adams,  12  Ind.  359; 

Comm'rs  of  Putnam  Co.,  35  Ind.  344;  Royal  v.  Baer,  17  Ind.  332;   Dagsjy  r. 

Way  v.  Fravel,  61    Ind.  162;  Pitts  v.  Cronne.lly,  20  Ind.  474;    Lee  v.  State, 

Langsdale,  32  Ind.  218;  The  Board  of  88   Ind.  256;    Borchus  v.  Huntington 

Trustees,  etc.  v  Huston,  12   Ind.  276;  Building,  etc.,  Ass'n,  97  Ind.  180;  Mc- 

The  Indiana  Central  R.  R.  Co.  v.  Brad-  Naught  v.  McAllister,  93  Ind.  114. 

34 


530  THE    TRIAL.  [CHAP. 

819.  Objections  to  the   report. — The  question  as  to  the  man- 
ner of  objecting  to  the  report  made  by  the  referees,  and  the  grounds 
upon  which  objections  may  be  maintained,  is  not  definitely  settled  by 
the  authorities  in  this  state. 

In  an  early  case  it  was  held  that  the  statutory  causes  in  case  of 
awards  by  arbitrators  applied  also  to  reports  by  referees,  viz.  : 

1.  That  the  award  was  obtained   by  fraud,  corruption,  partiality, 
or  other  undue  means,  etc. 

2.  That  the  arbitrator  improperly  refused  a  continuance,  or  excluded 
pertinent  and  material  evidence,  or  was  guilty  of  other  misconduct 
prejudicial  to  the  rights  of  the  party. 

3.  That  the  arbitrator  exceeded  his  powers,  or  so  imperfectly  exe- 
cuted them,  that  a  final  award  on  the  subject-matter  submitted  was  not 
made.0 

The  reference  may,  under  the  statute,  be  of  the  questions  of  fact 
alone,  or  of  both  the  law  and  the  facts.  If  the  facts  only  are  sub- 
mitted, leaving  the  court  to  determine  the  law  of  the  case,  the  report 
of  the  referee  should  be  treated  as  the  verdict  of  a  jury,  and  should 
be  subject  to  the  same  grounds  of  attack  on  account  of  error,  miscon- 
duct, or  corruption.1* 

If  all  the  issues  of  law  and  of  fact  are  referred,  the  report  should  be 
treated  as  the  finding  of  the  court,  and  subject  to  the  same  grounds  of 
attacks 

820.  Referee's  duties  end  with  the  report. — Upon  the  filing 
of  his  report  and  his  discharge,  the  duties  and  powers  of  the  referee 
are  at  an  end/ 

He  can  neither  amend  the  report  made  nor  file  a  subsequent  one. 
If  the  report  is  imperfect,  the  referee  should  be  required  to  correct 
it  before  being  discharged.3 

TRIAL   BY   MASTER   COMMISSIONER. 

821.  Generally. — The  present  statute  authorizes  the  appointment 
by  the  circuit  court  of  one  or  more   master  commissioners   in   each 
county.' 

(o)  The  Indiana,  etc.,   Railway  Co.  '(r)  The  Indiana,  etc.,  Railway  Co.  v. 

,:  Bradley,  7  Ind.  49,  56;  R.  S.  1843,  Bradley,  7  Ind.  49;  Saunders  •».  Hea- 

p.  789,  §  16.  ton,  12  Ind.  20,  28;  Conklin  v.  Morton, 

(p)  Post,  chap.  21 ;  R.  S.  1881,  ?  659;  40  Ind.  76. 

Daggy  v.  Connelly,  20  Ind.  474;  Ware  (s)  Reid  v.  The  State,  58  Ind.  406. 

v.  Adams,  12  Ind.  359;  Lee  v.  State,  88  McNaught  v.  McAllister,  93  Ind.  114. 

Ind.  256.  (t)  R.^S.  1881,. §  1397. 

(q)  Ante,  §  803  et  seq.,  and  authori- 
ties cited. 


XIX.]  THE   TRIAL.  531 

A  cause  may  be  referred  to  such  master  commissioner  by  the  consent 
of  parties  in  any  case,  and  by  order  of  court,  where  it  does  not  inter- 
fere with  the  right  of  trial  by  jury.u 

His  authority  and  duties  depend  upon  the  manner  and  extent  of  the 
reference.  If  it  is  by  order  of  the  court,  it  can  only  be  to  take  the 
evidence  and  report  to  the  court,  and  the  same  limited  reference  may 
be  made  by  the  parties. 

Where  this  is  the  case,  he  can  go  no  farther  than  to  carry  out  the 
order  of  reference ; T  and  the  court  may  require  the  evidence  to  be  re- 
ported. (1) 

The  reference  may  be  made  of  all  of  the  questions  involved,  as  in 
case  of  a  referee,  and,  where  this  is  done,  the  trial  and  report  should 
be  governed  by  the  same  rules  as  in  case  of  a  trial  by  a  referee. w 

Where  the  reference  requires  the  master  commissioner  to  find  what 
the  rights  of  the  parties  are,  and  a  report  is  made  and  judgment 
thereon,  a  new  trial  should  be  granted  upon  an  exception  to  the  report, 
where  material  error  has  been  committed  by  the  commissioner.1 

An  exception  to  the  report  of  a  master  commissioner  must  be  pre- 
sented to  the  supreme  court  by  bill  of  exceptions.7 

By  the  statute,  master  commissioners  are  given  the  powers  and  au- 
thorized to  discharge  the  duties  of  a  master  in  chancery.* 

Where  he  acts  as  a  master  in  chancery,  the  trial  is  by  the  court,  and 
the  commissioner  acts  simply  in  aid  of  the  court. a 

By  the  statute  of  1843,  the  duties  and  powers  of  masters  in  chancery 
were  expressly  defined. b 

WHAT   CAUSES   ARE   TRIABLE  BY  JURY. 

822.  The  statute. — "Issues  of  law  and  issues  of  fact  in  causes 
that,  prior  to  the  18th  day  of  June,  1852,  were  of  exclusive  equitable 
jurisdiction,  shall  be  tried  by  the  court;  issues  of  fact  in  all  other 
causes  shall  be  triable  as  the  same  are  now  triable.  In  case  of  the 
joinder  of  causes  of  action  or  defenses  which,  prior  to  said  date,  were 
of  exclusive  equitable  jurisdiction,  with  causes  of  action  or  defenses 
which,  prior  to  said  date,  were  designated  as  actions  at  law  and  triable 
by  jury,  the  former  shall  be  triable  by  the  court  and  the  latter  by  a 
jury,  unless  waived ;  the  trial  of  both  may  be  at  the  same  time  or  at 

(u)  Shaw  v.  Kent,  11  Ind.  80 ;  Hauser  reference  is  general,  see  Lee  v.  State, 

v.  Roth,   37  Ind.   89;    R.    S.    1881,   \  88  Ind.  256. 
409.  (x)  (Jronkhite  v.  Johnson,   55  Ind. 

(v)  McKinneyr.  Pierce,  5  Ind.  422;  175. 

McGills  v.  Slatterly,  52  Ind.  44;   Me-         (y)  Hauser    v.   Roth,   37    Ind.    89; 

Naught  v.  McAllister,  93  Ind.  114.  Stanton  v.  State,  82  Ind.  463. 

(1)  Borchus  v.Huntington  Building,         (z)    II.  S.  1881,  §  1403. 
etc.,  Ass' n,  97  Ind.  180.  (a)  Shaw    ».    Kent,    11     Ind.     80; 

(w)  Reid  v.  The  State,  58  Ind.  406.  Hauser  v.  Roth,  37  Ind.  89,  92. 
As  to  what  must  be  reported  where  the        (b)  R.  S.  1843,  p.  843. 


532  THE   TRIAL.  [CHAP. 

different  times,  as  the  court  may  direct :  Provided,  That  in  all  cases 
triable  by  the  court  as  above  directed,  the  court,  in  its  discretion,  for 
its  information,  may  cause  any  question  of  fact  to  be  tried  by  a  jury, 
or  the  court  may  refer  any  such  cause  to  a  master  commissioner  for 
hearing  and  report."0 

In  considering  the  effect  of  the  section,  and  the  construction  to  be 
placed  upon  it,  two  questions  are  presented : 

First.  What  causes  were  triable  by  jury  under  the  code  of  1852  ? 

Second.  What  causes  were  triable  exclusively  by  courts  of  chancery 
prior  to  the  18th  day  of  June,  1852,  the  date  when  the  code  of  1852 
was  approved  ? 

These  questions  will  be  considered  in  their  order. 

\ 

I.    WHAT    CAUSES   WERE    TRIABLE    BY    JURY  UNDER    THE 

CODE   OF   1852. 

823.  Civil  actions. — What  is  included  within  the  term  "  civil  ac- 
tion" has  been  considered  in  another  place. d 

It  is  not  the  purpose  here  to  attempt  to  discuss  general  principles,  or 
to  consider  the  grounds  upon  which  the  right  of  trial  by  jury  has  been 
granted  or  refused  in  the  many  cases  where  the  question  has  been  pre- 
sented. In  the  chapter  on  civil  actions  the  effect  of  section  249,  and 
the  reasoning  of  the  supreme  court  thereon,  were  fully  considered. 
The  authorities  in  this  state  fully  establish  the  rule  that  a  trial  by  jury 
could  not  be  demanded  as  a  constitutional  right  except  in  what  were 
"  civil  actions"  at  the  adoption  of  the  constitution,  but,  under  the  code 
of  1852,  it  is  clear  that  a  jury  trial  might  be  demanded,  as  a  statutory 
right,  in  what  were  formerly  suits  in  equity.  The  present  code  takes 
away  this  statutory  right  by  providing  that  such  equitable  suits  shall 
be  triable  by  the  court. 

The  provision,  therefore,  that  "the  issues  in  all  other  causes  shall  be 
triable  as  the  same  are  now  triable,"  leaves  out  of  consideration  such  as 
were  triable  exclusively  by  courts  of  chancery  prior  to  the  code  of 
1852. 

Without  incumbering  these  pages  with  the  reasoning  upon  which 
the  decisions  rest,  the  causes  in  which  it  has  been  held  that  a  jury  trial 
can  not  be  demanded  will  be  given,  followed  by  those  in  which  the 
right  to  demand  a  jury  has  been  held  to  exist. 

824.  Causes  in  which  the  right  of  trial  by  jury  has  been 
held  not  to  exist. — In  the  following  cases  it  has  been  held  that, 

(c)  R.  S.  1881,  \  409.  (d)  Ante,  §§  176,  177,  178. 


XIX.]  THE   TRIAL.  533 

under  the  code  of  1852,  the  parties  were  not  entitled  to  a  trial  by 
jury : 

1.  Proceedings  to  contest  elections.6    But  in  a  proceeding  by  way  of 
quo  warranto  against  a  party  charging  him  with  usurping  a  public 
office,  brought  on  the  relation  of  the  party  claiming  to  be  entitled  to 
hold  such  office,  it  has  been  held  that  the  parties  were  entitled  to  a 
jury  trial,  and  that,  too,  where  the  question  whether  the  relator  or  the 
defendant  had  been  elected  to  such  office  was  the  question  involved/ 

2.  Applications  for  the  writ  of  habeas  corpus.^ 

3.  Applications  for  divorce.11 

4.  Proceedings  to  review  judgments  in  partition  proceedings.' 

5.  Exceptions  to  the  report  of  commissioners  in  partition  proceedingsJ 
It  is  otherwise  upon  the  trial  in  the  action  for  partition. k 

6.  Applications  for  temporary  restraining  orders  or  temporary  in- 
junctions.1    A  jury  might  formerly  have  been  demanded  where  a  per- 
petual injunction  was  prayed  for ;  but  under  the  present  statute,  as 
they  are  chancery  causes,  they  must  be  tried  by  the  court.m 

7.  Application  for  a  writ  against  a  conductor  or  agent  of  a  railroad 
company,  to  appear  and   answer  as  to  the  amount  of  money  in  his 
hands  belonging  to  the  company,  where  a  judgment  for  damages  has 
been  recovered  for  animals  killed.0 

8.  Application  by  an  attorney,  who  has  been  disbarred,  to  be  read- 
mitted to  practice  law.0 

9.  Exceptions  to  a  statutory  award. p 

10.  Complaint  for  a  new  trial. q 

11.  Proceedings  for  contempt  in  disobeying  a  subpoena.1" 

12.  Actions  to  quiet  title.8 

825.  Causes  that  have  been  held  to  be  triable  by  jury. — 
In  the  following  cases,  it  has  been  held  that  under  the  code  of  1852, 
a  jury  might  be  demanded  as  a  matter  of  right : 

(e)  Knox   v.   Fesler,    17   Ind.   254;         (j)   Dillman  v.  Cox,  23  Ind.  440. 
Corey  v.  Lugar,  62  Ind.  60;  French  v.         (k)  Post,  §  825. 

Lighty,  9  Ind.  475.  (1)  Hopkins  v.  The  Greensburg,  etc., 

(f )  Reynolds  v.  The  State,  61  Ind.     Tp.  Co.,  46  Ind.  187. 

392;  post,  §825.  (m)  Hopkins    v.    The    Greensburg, 

(g)  Baker  v.  Gordon,  23  Ind.  204;     etc.,  Tp.  Co.,  46  Ind.  187;  post,  §  827. 
Garner  v.  Gordon,  41  Ind.  92.  (n)  The    Logansport,  etc.,  Railway 

(h)  Ewing  v.  Ewing.  24  Ind   468;  Co.  v.  Palton,  51  Ind.  487. 

Moore  v.  Moore,  25  Ind.  156;  Lewis  r.  (o)  Ex  parte  Walls,  73  Ind.  95. 

Lewis,  9  Ind.  105;  Musselman  v.  Mus  (p)  Milner  v.  Noel,  43  Ind.  324. 

selman,  44  Ind.  106;  Leffel  v.  Leffel,  (q)  Houston  v.  Bruner,  59  Ind.  25. 

35  Ind.  76.  (r)  The  Stater.  Newton,  62  Ind.  517. 

(i)  Allen  v.  Anderson,  57  Ind.  388.  (s)  Trittipo  v.  Morgan,  99  Ind.  269. 


534  THE   TRIAL.  [dlAP. 

1.  Proceedings  to  assess  damages  to  real  estate  taken  for  public  works.8 
This  is  held  to  be  a  statutory  and  not  a  constitutional  right.1    It  has 
been  held  otherwise,  where  the  proceeding  was  under  the  local  act  to 
incorporate  the  Evansville  and  Illinois  Railroad  Co.u 

2.  Where  the  question  of  advancement  to  a  part  of  the  heirs  is  pre- 
sented upon  the  distribution  of  the  estate.7 

3.  In  proceedings  to  suspend  or  disbar  an  attorney."     It  was  held 
otherwise  under  the  statute  of  1843.x 

4.  Exceptions  to  the  report  of  an  executor  or  administrator. J 

5.  In  an  action  on  a  common-law  a  ward. z 

6.  In  quowarranto  proceedings/ 

7.  Proceedings  supplementary  to  execution.11 

8.  An  action  for  partition  has  been  held  to  be  a  "  civil  action, "c  and 
is  therefore  triable  by  jury.d 

9.  Actions  to  contest  wills.  (1) 

In  giving  the  cases  in  which  it  has  been  held  that  a  jury  trial  may 
be  had  as  of  right,  common-law  civil  actions,  about  which  there  is  no 
question,  are  omitted.  Chancery  cases  have  also  been  omitted,  as  it  is 
expressly  provided  by  the  present  statute  that  they  shall  be  tried  by 
the  court.6 

4 

CAUSES     TRIABLE     EXCLUSIVELY     BY    COURTS     OF     CHAN- 
CERY  PRIOR  TO  JUNE    18,   1852. 

826.  General  discussion. — The  question  as  to  what  causes  were 
triable  exclusively  by  courts  of  chancery,  prior  to  the  adoption  of  the 
code,  must  be  one  of  much  uncertainty.  This  uncertainty  must  be 
greatly  increased  in  practice,  in  this  state,  because  of  the  fact  that  we 

(s)  The  Lake  Erie,  etc.,  K.  K.  Co  v.         (x)  Ex   parte   Smith,   28   Ind.   47 ; 

Heath,  9   Ind.  558;  The   Norristown,  Ex  parte  Trippe,  66  Ind.  531 ;  Ex  parte 

etc.,  Turnpike  Co.  v.  Burket,  26  Ind.  Kobinson,  3  Ind.  52. 
53;  Piper   v.   The   Connersville,    etc.,         (y)  Hamlyn  v.  Nesbit,  37  Ind.  284. 
Turnpike  Co.,  12  Ind.  400;  Heady  v.         (z)  Goodwine  v.  Milter,  32  Ind.  419; 

The  Vevay,  etc.,  Tp.  Co.,  52  Ind.  117.  Milner  v.  Noel,  43  Ind.  324,  327. 

(t)  The  Lake  Erie,  etc.,  R.  R.  Co.  v.         (a)  Reynolds  v.  The  Stale,  61  Ind. 

Heath,    9    Ind.    558;    Dronberger   v.  392. 

Reed,  11  Ind.  420;    The  Norristown,         (b)  The   Toledo,   etc.,    R.  R.  Co.  v. 

etc.,  Turnpike  Co.  v.  Burket,  26  Ind  Howes,    68    Ind.   458;    McMahan    v. 

53;  Hymes  v.  Aydelott,  26  Ind.  431.  Works,  72  Ind.  19. 

(u)  The  Evansville,  etc.,  R.  R.  Co.  v.         (c)  Kyle  v.  Kyle,  55  Ind.  387. 
Miller,  30  Ind.  209.  (d)  R.  S.  1881,  §  1188. 

(v)  Shaw  v.  Kent,  11  Ind.  80.  (e)  Ante,  §  822;  post,  §g  826,  827. 

(w)  Reilley  v.  Cavenaugh,    32  Ind.         (1)  Lamb  v.  Lamb,  105  Ind.  457. 
214;  R.  S.  1881,  §976. 


XIX.]  TILE   TRIAL.  535 

have,  for  nearly  thirty  years,  been  practicing  under  a  code  to  which 
courts  of  chancery  and  equity  jurisdiction  were  unknown. 

It  will  be  conceded  that  every  good  lawyer  must,  of  necessity,  be 
familiar  with  the  rules  of  equity  as  well  as  of  law ;  but  lawyers,  in 
Indiana,  have  had  no  occasion  to  distinguish  between  the  jurisdiction 
of  courts  of  law  and  courts  of  equity.  It  has  only  been  necessary, 
heretofore,  to  know  that  certain  facts  entitled  a  party  to  a  certain  rem- 
edy, and,  whether  the  remedy  were  legal  or  equitable,  there  was  but 
one  court  in  which  the  remedy  could  be  obtained.  Besides  this,  the 
other  provisions  of  the  code,  and  the  construction  placed  upon  them 
by  the  supreme  court,  are  utterly  inconsistent  with  the  section  making 
it  necessary  to  determine  whether  the  cause  was  formerly  triable  by  a 
court  of  chancery  or  a  court  of  law,  in  arriving  at  a  conclusion  as  to 
whether  a  party  is  entitled  to  a  jury  or  not.  The  question  of  jurisdic- 
tion depends  sometimes  upon  the  subject-matter  of  the  action ,  and  some- 
times upon  the  remedy.  To  take  a  familiar  example:  An  action  is 
brought  for  the  specific  performance  of  a  contract  to  convey  real  estate. 
This  would  be  a  cause,  undoubtedly,  of  exclusive  equitable  jurisdic- 
tion/ '• 

But  the  party  is  not  bound  to  seek  a  specific  performance  in  all  cases, 
but  may  sue  for  damages  where  the  contract  is  in  writing  and  binding 
at  law.  This  would  fall  within  the  exclusive  jurisdiction  of  a  court 
of  law. 

The  same  facts  that  would  authorize  a  recovery  in  an  action  for 
specific  performance  would,  in  some  cases,  entitle  the  plaintiff  to  a  re- 
covery, in  a  court  of  law,  of  a  judgment  for  damages.8 

Suppose  the  plaintiff  to  bring  his  action  for  specific  performance  in 
such  a  case,  and  the  allegations  of  the  complaint  to  be  sufficient  to  en- 
title him  to  the  relief  demanded.  If  the  form  of  the  complaint  con- 
trols, under  this  section,  the  parties  could  not  demand  a  jury.  But 
if,  upon  the  trial,  although  the  plaintiff  is  seeking  a  specific  perform- 
ance, and  his  complaint  is  sufficient  for  that  purpose,  he  fails  to  prove 
sufficient  to  entitle  him  to  a  specific  performance,  but  does  make  out 
a  case  for  damages,  under  the  well-established  rule  in  this  state,  not- 
withstanding the  plaintiff  has  mistaken  his  remedy,  which  in  this  case 
determines  the  jurisdiction,  the  court  must  give  him  such  relief  as 
the  evidence  would  have  entitled  him  to  if  the  proper  remedy  had 
been  asked  for  in  the  complaint,  and  must  render  a  judgment  for 


(f)  Pomeroy's  Eq.  Jur.,  §  138.  (h)  Bennett  v.  Preston,  17  Ind.  291; 

(g)  Snodgrass  v.  Snodgrass,  32  Ind.     The  Cincinnati,  etc.,  U.  R.  Co.  v.  Wash- 
406;  Pomeroy's  Rem.,  I  453.  burn,  25  Ind.  259;  ante,  §  341. 


536  THE   TRIAL.  [CHAP. 

The  same  may  be  said  of  actions  to  rescind  contracts  for  fraud,  and 
many  others,  where  the  remedy  and  not  the  subject-matter  must  de- 
termine the  question  of  jurisdiction.1 

That  the  facts  would  entitle  a  party  to  maintain  either  an  action  at 
law  or  a  suit  in  equity  does  not  prove  the  jurisdiction  to  be  concurrent. 
On  the  contrary,  in  many  cases  the  remedy  to  be  granted  alone  de- 
termines the  jurisdiction. 

A  late  work  on  Equity  Jurisprudence  thus  classifies  the  exclusive 
jurisdiction  of  courts  of  chancery : 

"First.  All  civil  cases  in  which  the  primary  right  violated,  or  to  be 
declared,  maintained,  or  enforced,  whether  such  right  be  an  estate, 
title,  or  interest  in  property,  or  a  lien  on  property,  or  a  thing  in  action 
arising  out  of  contract,  is  purely  equitable  and  not  legal,  a  right,  es- 
tate, title,  or  interest  created  by  equity  and  not  by  law.' 

"All  cases  of  this  kind  fall  under  the  equitable  jurisdiction  alone, 
because  of  the  nature  of  the  primary  or  substantive  right  to  be  re- 
dressed, maintained,  or  enforced,  and  not  because  of  the  nature  of  the 
remedies  to  be  granted,  although  in  most  of  such  instances  the  rem- 
edy is  also  equitable. 

"  It  is  a  proposition  of  universal  application  that  courts  of  law  never 
take  cognizance  of  cases  in  which  the  primary  right,  estate,  or  interest 
to  be  maintained  or  the  violation  of  which  is  sought  to  be  redressed 
is  purely  equitable,  unless  such  power  has  been  expressly  conferred 
by  statute ;  and  if  the  statutes  have  interfered  and  made  the  right,  or 
the  violation  of  it,  cognizable  by  courts  of  law,  such  right  thereby  be- 
comes, to  that  extent,  legal. 

"Second.  All  civil  cases  in  which  the  remedy  to  be  granted — and  of 
course  the  remedial  right — is  purely  equitable,  or  one  which  is  recog- 
nized and  administered  by  courts  of  equity,  and  not  by  courts  of  law. 
In  the  cases  of  this  class  the  primary  right  which  is  maintained,  re- 
dressed, or  enforced,  is  sometimes  equitable  and  is  sometimes  legal ; 
but  the  jurisdiction  depends,  not  upon  the  nature  of  these  rights,  es- 
tates, or  interests,  but  wholly  upon  the  nature  of  the  remedies.  Cases 
in  which  the  remedy  sought  and  obtained  is  one  which  equity  courts 
alone  are  able  to  confer  must,  upon  any  consistent  system  of  classifica- 
tion, belong  to  the  exclusive  jurisdiction  of  equity,  even  though  the 
primary  right,  estate,  or  interest  of  the  party  is  one  which  courts  of 
law  recognize,  and  for  the  violation  of  which  they  give  some  remedy."  k 

Applying  this  statement  of  the  exclusive  jurisdiction  of  courts  of 

(i)   Burt  r.  Bowles,  69  Ind.  1.  (k)  Pomeroy'sEq.  Jur..  vol.  1,  §§137, 

(j)  Citing  Spence  Eq.  Jurisd.,  vol.  1,     138,  146. 
pp.  430-434. 


XIX.]  THE   TRIAL.  537 

chancery  to  the  section  under  consideration,  its  inconsistency  with 
other  parts  of  our  civil  procedure  will  be  apparent.  Under  this  sec- 
tion, as  we  must  go  back  to  a  time  when  we  had  no  code,  the  jurisdic- 
tion must  be  determined  by  the  remedy  prayed  for.  Under  the  code, 
which  must  govern  the  trial  in  all  respects  except  in  determining 
whether  the  court  or  a  jury  shall  try  the  case,  the  remedy  prayed  for  is 
totally  immaterial,  must  be  disregarded,  and  the  relief  the  party  proves 
himself  entitled  to,  if  within  the  facts  pleaded,  must  be  given  him  by 
the  judgment,  whether  the  relief  is  legal  or  equitable,  and  without  any 
reference  to  the  question  whether  a  court  of  chancery  or  a  court  of  law 
would  have  had  jurisdiction  prior  to  the  adoption  of  the  code.  In 
other  words,  the  question  whether  a  party  is  entitled  to  a  jury  or  not 
can  not  be  determined  in  many  cases  until  after  the  right  has  been 
granted  or  refused  and  the  trial  completed. 

The  supreme  court  has  held  in  effect  that  the  rights  and  interests 
involved  and  the  relief  demanded  in  the  complaint  must  control.  (1) 

The  only  question  that  is  likely  to  arise  is  as  to  the  effect  to  be  given 
to  the  word  "exclusive,"  as  applied  to  chancery  jurisdiction. 

If  it  is  so  construed  as  to  cover  all  causes,  that  is,  all  actions,  that  were 
within  the  exclusive  jurisdiction  of  courts  of  chancery,  it  must  include 
all  those  in  which  the  remedy  prayed  for  and  authorized  by  the  facts 
alleged  could  only  have  been  administered  by  courts  of  chancery.  If  the 
word  "  exclusive"  is  applied  to  the  cause  of  the  action,  e.  g.,  the  fraud, 
then  jurisdiction  would  be  concurrent  in  all  those  cases  in  which  both 
a  court  of  law  and  a  court  of  chancery  could  furnish  a  remedy, 
though  a  different  one.  It  is  evident,  to  my  mind,  that  the  intention 
of  the  legislature  was  to  give  the  word  the  first  and  broader  applica- 
tion. To  give  the  section  a  different  construction  would  do  violence  to 
its  express  terms  and  limit  it  to  a  very  small  number  of  cases.(2) 

With  this  construction,  the  question  of  the  right  to  a  trial  by  jury 
can  only  be  determined  by  the  form  of  the  complaint,  and  in  all  cases 
where  the  complaint  shows  such  a  cause  of  action  as  would  have  been 
cognizable  by  a  court  of  chancery,  exclusively,  and  the  relief  prayed 
for  could  only  have  been  administered  by  that  court,  the  right  must  be 
denied.  The  fact  that  the  evidence  may  entitle  the  party  to  different 
relief  can  not  be  known  at  the  time  the  question  must  be  determined, 
and  the  form  of  the  complaint  must,  of  necessity,  control. 

Where  the  prayer  for  relief  brings  the  case  within  the  chancery 
jurisdiction,  but  the  facts  alleged  only  entitle  the  plaintiff  to  a  judg- 
ment at  law,  the  prayer  must  be  disregarded  and  a  trial  by  jury  al- 
lowed. It  is  only  where  the/octe  as  well  as  the  relief  demanded  show 
the  cause  to  be  cognizable  in  chancery,  that  a  jury  trial  can  not  be  de- 

(1)  Hendricks  v.  Frank,  86  Ind.  278.         (2)  Hendricks  v.  Frank,  86  Ind.  278. 


538  THE   TRIAL.  [CHAP. 

manded.  But  when  the  facts  alleged  would  entitle  a  party  to  either 
an  equitable  or  legal  remedy,  and  the  prayer  is  for  equitable  relief,  the 
relief  demanded  should  control,  as  there  is  no  other  way  by  which  the 
right  can  be  determined  before  trial. 

827.  Causes  enumerated.— It  is  impossible  to  enumerate  all  of 
the  causes  that  were  triable  exclusively  by  the  courts  of  chancery  prior 
to  the  enactment  of  the  code.  Ordinarily,  the  form  of  the  verdict  that 
must  be  returned  in  favor  of  the  plaintiff,  under  the  issues,  will  deter- 
mine the  jurisdiction.  In  actions  of  law,  the  recovery  must  be  for 
money  or  specific  property. 

In  equity,  as  a  rule,  the  suit  is  to  compel  the  defendant  to  do  some 
specific  thing,  to  enforce  a  lien,  or  to  relieve  the  plaintiff  or  his  prop- 
erty from  liability  by  the  cancellation  of  some  contract,  and  other  like 
remedies.  Therefore,  if  the  form  of  the  verdict  must  be:  We,  the 
jury,  find^for  the  plaintiff,  and  assess  his  damages,  etc.,  or,  We,  the 
jury,  find  for  the  plaintiff  that  he  is  the  owner  and  entitled  to  the  pos- 
session of  the  property,  jt  may  be  safely  placed  as  one  within  the  juris- 
diction of  a  court  of  law  and  triable  by  jury. 

The  statute  of  1843,  in  defining  the  jurisdiction  of  circuit  courts, 
provided:  "  They  shall  have  cognizance,  sitting  as  a  court  of  chan- 
cery, of  all  cases  in  equity,  when  the  parties  have  not  a  plain,  adequate 
and  complete  remedy  at  law,  or  when  any  such  case  is  properly  deter- 
minable  in  equity  according  to  the  course  of  proceedings  in  a  court  of 
chancery."1  This  statute  did  not  change  the  chancery  jurisdiction. 
The  circuit  court  had  two  sides,  a  law  side  and  an  equity  side  ;  but, 
notwithstanding  all  causes  were  triable  in  the  same  court,  the  jurisdic- 
tion of  legal  and  equitable  causes  were  kept  distinct,  the  equity  cases 
being  cognizable  by  the  equity  side  of  the  court  alone,  as  much  as  if  it 
were  in  fact  a  court  of  chancery. 

The  statute  also  provided  that  the  probate  court  should  have  exclu- 
sive jurisdiction  in  "  all  matters  relating  to  the  probate  of  last  wills  and 
testaments,  granting  of  letters  testamentary,  of  administration  and  of 
guardianship ;  of  all  matters  relating  to  the  settlement  and  distribu- 
tion of  decedents'  estates,  and  the  personal  estates  of  minors ;  the  ex- 
amination and  allowance  of  the  accounts  of  executors  and  administra- 
tors, and  of  the  guardians  of  minors,  except  where,  in  special  cases, 
concurrent  jurisdiction  is  given  by  law  to  some  other  court." 

The  probate  court  was  also  given  concurrent  jurisdiction  with  the 
circuit  court  in  the  following  cases : 

"1.  In  all  suits  at  law  or  in  equity  upon  all  demands  or  causes  of 

(1)  R.  S.  1843,  p.  647,  \  8. 


XIX.]  THE   TRIAL.  539 

action  in  favor  of  or  against  heirs,  devisees,  legatees,  executors,  ad- 
ministrators or  guardians,  and  their  sureties  and  representatives. 

"2.  In  the  partition  of  real  estate. 

"3.  In  the  assignment  of  dower. 

"•4.  The  appointment  of  a  commissioner  to  execute  a  deed  on  any 
title  bond  given  by  a  deceased  obligor. 

"5.  To  authorize  guardians  to  sell  and  convey  any  real  estate  of 
their  wards  in  order  to  reduce  the  same  to  assets  for  the  payment  of 
the  debts  and  liabilities  of  the  ward,  or  debts  and  liabilities  justly  charg- 
able  on  their  estates,  and  to  provide  for  the  wants,  education,  support, 
or  interests  of  minors,  and  the  care  and  support  of  idiots  and  lunatics. 

"  6.  The  appointment  of  guardians  of  the  persons  and  estates  of  in- 
sane persons  and  idiots."  m 

Strictly  speaking,  there  was  no  jurisdiction  in  the  courts  of  chan- 
cery, in  Indiana,  prior  to  the  enactment  of  the  code.  The  jurisdiction 
was  vested  in  the  circuit  and  probate  courts,  neither  of  which  were 
courts  of  chancery.  But  the  statute  of  1843  provided : 

"  Sec.  1.  The  circuit  courts  shall  have  cognizance  in  all  suits  prop- 
erly cognizable  in  a  court  of  chancery. 

"  Sec.  2.  The  probate  court  shall  have  jurisdiction  in  suits  in  chan- 
cery where  such  jurisdiction  is  conferred  by  law. 

"  Sec.  3.  Such  courts,  sitting  in  chancery,  shall  have  power  to  make 
rules  and  regulations  for  the  government  of  proceedings  had  before 
them,  and  shall  in  all  things  be  governed  by  the  known  usages  of 
courts  of  equity,  except  where  it  may  be  otherwise  provided  by  law. 

"Sec.  4.  All  original  applications  to  the  chancery  side  of  either  of 
said  courts  shall  be  by  bill,  which  may  be  filed  in  the  clerk's  office  in 
term  time,  or  in  vacation."" 

Thus,  although  the  jurisdiction  was  given  by  statute  to  other  than 
chancery  courts,  the  practice  was  the  same  as  formerly,  equitable 
actions  being  cognizable  by  the  chancery  side  of  the  court.  And 
although  the  two  courts  had  concurrent  jurisdiction,  they  were  both, 
in  effect,  made  courts  of  chancery,  where  the  suits  were  equitable. 

Under  the  statute  of  1843,  a  jury  might  be  demanded  as  a  right  in 
chancery  cases  in  the  probate  court.0 

The  following  are  given  as  some  of  the  causes  of  action  and  defenses 
that  were  formerly  triable  exclusively  by  courts  of  chancery : 

1.  To  compel  the  rescission,  cancellation,  or  delivery  up  of  agree^ 
ments,  securities  or  deeds. 

2.  To  reform  written  instruments  and  to  correct  mistakes  therein. 

(m)  R.  S.  1843,  p.  665,  ??  4,  5,  6.  (o)  R.   S.    1843,   p.   666,   ??  15,   10 

(n)  R.  S.  1843,  p.  832.  ??  1.  2.  3.  *.         Clem  r.  Durham.  14  Tiul.  'Ji'3 


540  THE   TRIAL.  [CHAP. 

3.  For  specie  performance  of  contracts,  awards,  etc. 

4.  To  rescind  contracts.  (1) 

5.  To  set  aside  conveyances  made  to  defraud,  hinder  or  delay  creditors. 

6.  To  probate  or  contest  wills. 

7.  For  injunctive  relief.  (2) 

8.  To  foreclose  or  redeem  mortgages.  (3) 

9.  Interpleader.  (4) 

10.  To  enforce  vendors'  or  other  liens  on  land. 

11.  To  establish  or  enforce  trusts. 

12.  Seeking  the  construction  of  wills  and  the  enforcement  of  trusts 
under  them. 

13.  Actions  for  divorce  or  to  nullify  or  affirm  marriages. 

14.  To  compel  an  election  between  inconsistent  rights  or  claims. 

15.  To  marshal  assets  or  securities. 

16.  For  dissolution  of  partnerships  and  to  settle  accounts  of  same. 

17.  To  compel   payment  of  lost  bills  of  exchange   or  promissory 
notes,  negotiable  by  delivery  merely. 

18.  To  quiet  title  to  real  estate. 

19.  To  review  judgments  or  decrees. 

20.  Subrogration  and  substitution. 

HOW  JURY  TRIAL  MAY  BE  WAIVED. 

828.  The  statute. — "  Sec.  550.     The  trial  by  jury  may  be  waived 
by  the  parties  in  all  actions  in  the  following  manner : 

"First.  By  failing  to  appear  at  the  trial. 

"Second.  By  a  written  consent,  in  person  or  by  attorney,  filed  with 
the  clerk. 

"Third.  By  oral  consent  in  open  court  entered  on  the  record. "p    . 

829.  "When  jury  waived  by  failure  to  appear. — Under  this 
statute  it  has  been  held  that  where  a  cause  at  issue  has  been  reached 
for  trial,  and  the  defendant  and  his  attorney  are  absent,  it  may  be  sub- 
mitted to  the  court  for  trial  of  the  issues  joined,  without  the  interven- 
tion of  a  jury,  without  calling  the  defendant.*1 

In  both  earlier  and  later  cases  it  has  been  held  that  where  the  answer 
of  general  denial  was  in  a  default  could  not  be  taken  against  the  de- 

(p)  R.  S.  1881,  §  550.  (3)  Farmers'    Bank    v.   Butterfield, 

(1)  Israel  v.  Jackson,  93  Ind.  543;     100  Ind.  229. 

Platter  v.  Board  of  Comm'rs,  etc.,  103         (4)  Ketcham  v.  Brazil,  etc.,  Coal  Co., 
Ind.  360.  88  Ind.  515. 

(2)  Pence  v.  Garrison,  93  Ind.  345.  (q)  The  Indianapolis,  etc.,  Mf  g  Co, 

v.  Caven,  53  Ind.  258. 


THE   TRIAL.  541 

fendant  upon  his  failure  to  appear  at  the  trial,  and  that  the  damages 
could  not  be  assessed  by  the  court/ 

But  all  of  the  cases  cited,  except  Terrell  v.  The  State,  in  which  it 
was  held  that  the  cause  must  be  tried  by  a  jury,  were  decided  before 
the  present  statute,  and  the  latter  case  has  been  overruled  by  a  more 
recent  decision,  in  which  it  is  again  held,  as  in  The  Indianapolis,  etc., 
M'f'g  Co.  v.  Caven,  that,  by  failing  to  appear  at  the  trial,  the  de- 
fendant waives  a  jury,  notwithstanding  an  answer  of  general  denial 
has  been  pleaded.3 

The  statute  provides,  in  express  terms,  that  a  jury  trial  shall  be 
waived  by  "  failing  to  appear  at  the  trial,"  and  there  is  no  reason  why 
it  should  not  apply  to  a  case  where  the  defendant  has  answered  but 
fails  to  appear  when  the  cause  is  called  for  trial. 

830.  What  will  amount  to  oral  consent  entered  of  rec- 
ord.— It  is  not  necessary  that  the  record  should  show,  in  terms,  that 
the  parties  have  consented,  orally,  that  the  cause  may  be  tried  without 
a  jury.  It  has  been  held  that  oral  consent  may  be  by  acts  as  well  as 
words.  Thus,  where  a  party  was  present  in  court,  by  attorney,  at  the 
reference  of  a  cause  to  a  master  commissioner,  and  complied  with  an 
order  to  furnish  a  bill  of  particulars,  and  was  present  in  court  when 
the  report  of  the  master  was  made,  and  entered  no  objection,  it  was 
held  to  amount  to  an  oral  consent  entered  of  record  within  the  mean- 
ing of  the  statute.1 

But  the  record  must  show  that  the  party  was  present  at  the  time 
and  permitted  the  reference  to  be  made  without  objection." 

Where  a  party  is  present  in  court  and  fails  to  claim  the  right  to  a 
trial  by  jury,  and  goes  to  trial  by  the  court,  without  objection,  a  jury 
is  waived." 

So,  where  an  agreement  is  made  and  entered  of  record,  consenting 
to  a  disposition  of  the  cause  inconsistent  with  its  submission  to  a  jury 
for  trial." 

And  it  has  been  held  in  an  action,  where  a  county  was  a  party,  thus 
rendering  residents  of  the  county  incompetent  as  jurors,  that  where 
the  party  refuses  to  take  a  change  of  venue,  and  persists  in  challeng- 

(r)  Harris  v.  The  Muskingum,  etc.,  (t)  Houser  v.  Roth,  37  Ind.  89. 

Mfg  Co.,  4  Blkf.  2*57;   Maddox  v.  Pul-  (u)  Shaw  v.  Kent,  11  Ind.  80. 

Hum,  5  Blkf.  205;  Ellison  v.  Nichols,  1  iv)  The  Madison,  etc.,  R.  R.  Co.  v. 

Ind.  477;   Kirby  v.  Holmes,  6  Ind.  33;  Whiteneck,  8  Ind.  217,  218;  Preston  v. 

Terrell  v.  The  State,  68  Ind.  155.  Sanford's  Adm'r,  21  Ind.  156. 

(s)  Love  v.  Hall,  76  Ind.  326.  (w)  Goodwin    v.   Hedrick,   24   Ind. 

121. 


542  THE   TRIAL.  [CHAP. 

ing  all  jurors  for  cause,  the  court  may  try  the  cause  over  the  demand 
of  such  party  for  a  trial  by  jury.1 

DISMISSAL  OF   ACTIONS. 

831.  "When  action  may  be  dismissed. — -"An  action  may  be 
dismissed  without  prejudice — 

"First.  By  the  plaintiff  before  the  jury  retires ;  or  when  the  trial  is 
by  the  court  at  any  time  before  the  finding  of  the  court  is  announced. 

"Second.  By  the  court  where  the  plaintiff  fails  to  appear  on  the 
trial. 

"Third.  By  the  court  on  the  refusal  to  make  the  necessary  parties 
after  having  been  ordered  by  the  court. 

"Fourth.  By  the  court  on  the  application  of  some  of  the  defendants 
where  there  are  others  whom  the  plaintiff  fails  to  prosecute  with  dili- 
gence. 

"Fifth.  By  the  court  for  disobedience,  by  the  plaintiff,  of  an  order 
concerning  the  proceedings  in  the  action. 

"  In  all  other  cases,  upon  the  trial,  the  decision  must  be  upon  the 
merits."  y 

Under  this  section  the  plaintiff  ma"y  dismiss  all  or  any  part  of  his 
action  at  any  time  before  the  jury  retires.2 

But  it  is  too  late  after  the  jury  has  retired,  and  before  the  verdict  is 
returned.8 

So,  where  the  trial  is  by  the  court,  it  is  too  late  to  dismiss  after  the 
"  finding  of  the  court  has  been  announced. "b 

An  entry  of  the  finding,  on  the  proper  order  book,  is  an  announce- 
ment of  the  finding.0 

But  an  entry  made  on  the  judge's  docket  is  not  sufficient.  There 
must  be  an  oral  announcement  in  open  court,  or  an  entry  upon  the  order 
book.d 

The  plaintiff  may  dismiss  at  any  time  before  the  announcement  is 
made,  although  the  court  has  intimated  that  the  finding  will  be 
against  him.6 

(x)  The  Board  of  Corom'rs  of  Foun-  Randies  v.  Randies,  63  Ind.  93;  Liver- 
tain  Co.  v.  Loeb,  68  Ind.  29.  good  v.  Rhoades,  20  Ind.  411 ;  Long  vf 

(y)  R.  S.  1881,  §  333;  Vol.  3,  p.  651.  Thwing,  9  Ind.  179;  Burns  v.  Keigels- 

(z)  Dunning  v.  Galloway,  47  Ind.  berger,  70  Ind.  522. 

182.  (c)  Walker  v.  Heller,  56  Ind.  298; 

(a)  Holland  v.  Johnson,  51  Ind.  346;  Walker  v.  Heller,  73  Ind.  46. 
Sanders  v.  Sanders,  24  Ind.  133;  Me-  (d)  Cohn  v.  Rumely,  74  Ind.  120. 
Clelland   v.  The    Louisville,  etc.,   Ry.  (e)   Beard   v.   Becker,  69   Ind.  498; 
Co.,  94  Ind.  276.  Burns  v.  Reigelsberger,  70  Ind.  522. 

(b)  Walker  v.  Heller,  56  Ind.  298 ; 


XIX.]  THE   TRIAL.  543 

832.  Dismissal  in  vacation. — "The  plaintiff  may  dismiss  his 
action  in  vacation,  by  filing  with  the  clerk  a  motion  to  that  effect."' 

The  necessary  written  dismissal  being  filed  in  the  clerk's  office,  the 
cause  stands  dismissed  as  effectually  as  if  dismissed  in  open  court.8 

The  statute  makes  it  the  duty  of  the  clerk  to  enter  the  dismissal  on 
the  order  book,  and  the  court  must  render  judgment  accordingly  at 
the  next  term.h 

The  action  may  be  dismissed  in  vacation,  after  the  same  has  been 
referred  to  a  referee  or  master  commissioner.' 

833.  By  the  court. — The  court  is  authorized  to  dismiss  in  four 
cases :    1.  Where  the  plaintiff  fails  to  appear ;  2.  Where  he  fails  to 
make  necessary  parties ;  3.  Where  he  fails  to  prosecute  some  of  the  de- 
fendants with  diligence ;  4.  For  disobedience  of  an  order  concerning 
the  proceedings  in  the  action.J 

Under  this  statute  it  has  been  held  that  the  action  may  be  dismissed 
for  a  failure  to  obey  an  order  to  produce  papers.k 

And  the  statute,  being  general  in  its  terms,  the  court  has  the  power 
to  dismiss  the  action,  without  prejudice,  in  any  case  where  an  order 
properly  made  is  disobeyed  by  the  plaintiff.  But  it  should  appear 
that  the  order  is  so  made  that  its  requirements  may  be  readily  under- 
stood and  that  it  has  been  purposely  disobeyed.1 

834.  Effect  of  dismissal ;   stay  of  proceedings  in  second 
action  for  payment  of  costs. — The  statute  authorizes  the  dismis- 
sal, whether  by  the  plaintiff  or  the  court,  "  without  prejudice;  "  there- 
fore the  plaintiff  may  bring  the  action  again,  and  the  dismissal  can  not 
be  pleaded  as  a  former  adjudication.™ 

But  where  the  plaintiff  voluntarily  dismisses  his  action,  and  brings 
it,  the  second  time,  upon  a  showing  that  the  costs  of  the  first  action 
have  not  been  paid,  and  that  the  plaintiff  is  insolvent,  the  second  ac- 
tion will  be  stayed  until  the  costs  in  the  first  are  paid.n 

The  application  to  stay  may  be  made  at  any  time  before  trial.0 

(f )  R.  S.  1881,  2  334.  (1)   Whitman  o.  Weller,  39  Ind.  515. 

(g)  St.  John  v.  Hardwick,   17  Ind.         (m)  Ante,  §  605. 

180.  (n)  The  State  v.  Howe,  64  Ind.  18; 

(b)  R.  S.  1881,  §  334.  Bicknell's  Prac.,  2  ed.,  p.  108. 

(i)  Miller  v.  Mans,  28  Ind.  194.  (o)  The  State  v.  Howe,  64  Ind.  18; 

( j)  R.  S.  1881,  \  333.  Cuyler  v.  Vanderwerk,  1  Johns.  Gas. 

(k)  Silvers  v.  The  Junction   R.  R.  247. 
Co.,  17  Ind.  142 ;  Whitman  v.  Weller, 
39  Ind.  515. 


544  THE   TRIAL.  [CHAP. 

This  rule  only  applies  where  the  first  action  was  voluntarily  dis- 
missed, and  is  upon  the  presumption  that  the  second  suit  is  vexatious. 

835.  Set-off;  counterclaim. — Under  the  statute  authorizing  a 
dismissal  a  set-off  is  regarded  as  a  complaint,  and  may  be  dismissed 
without  prejudice.1* 

The  same  is  true  where  a  counterclaim  has  been  filed. 

Where  there  is  a  set-off  or  counterclaim  they  are  not  affected  by  the 
dismissal  of  the  complaint. q 

(p)  Cram  v.  Hilligross,  21  Ind.  210.         (q)  Ante,  §  681. 


XX.J 


VERDICT. 


545 


CHAPTER   XX. 


VERDICT.(l) 


SECTION. 

836.  Is  general  or  special. 

GENERAL    VERDICT. 

837.  Form. 

838.  On  several  issues. 

839.  May  be  amended. 

840.  Sealed  verdict. 

841.  When  and  how  returned. 

842.  Must  be  in  writing  and  signed. 

843.  When  becomes  part  of  the  record. 

844.  Compromise  or  chance  verdict. 

845.  Set-off;  counterclaim. 

VERDICTS    IN    PARTICULAR   CASES. 

846.  Replevin. 

847.  In  highway  cases. 

848.  Verdict   for   more    than    amount 

asked  for  in  the  complaint. 

SPECIAL    VKRDICT. 

849.  When   may  be  returned. 

850.  May   be   returned    with    general 

verdict. 

851.  What  must  find. 


SECTION. 

852.  Draft   may  be   prepared   by   t\m 

parties. 

INTERROGATORIES. 

853.  Must  be  submitted  at  the  request 

of  either  party. 

854.  When  request  to  submit  must  be 

made. 

855.  Form. 

-856.  Evidence;  conclusions  of  law. 

857.  Must  be  as  to  a  material  fact. 

858.  Must    be    fully    and    fairly    an- 

swered. 

859.  Request  for  waives  special  verdict. 

860.  Each  answer  must  be  signed. 

861.  When    answers   control    general 

verdict. 

862.  Can   only  be   returned  with  the 

general  verdict. 

863.  Can  not  be  withdrawn  from  the 


864.  Motion  for  judgment  on. 

865.  When   treated  as  a  special  ver- 

dict. 


836.  Is  general  or  special. — "  The  verdict  of  a  jury  is  either 
general  or  special.     A  general  verdict  is  that  by  which  they  pronounce 
generally  upon  all  or  any  of  the  issues,  either  in  favor  of  the  plaintiff 
or  defendant.     A  special  verdict  is  that  by  which  the  jury  find  the 
facts  only,  leaving  judgment  thereon  to  the  court."* 

GENERAL   VERDICT. 

837.  Form. — The  verdict  must  be  direct  and  positive  in  form.h 


(1)  Forms  of  verdicts,  Vol.  3,  pp. 
428-431. 

(a)  R.  S.  1881,  §  545;  Busk.  Prac. 
207;  -Bird  v.  Lanius,  7  Ind.  615;  Gra- 
ham v.  The  State,  66  Ind.  386. 

35 


(b)  The  State  v.  Beem,  3  Blkf.  222; 
Proffatt's  Jury  Trials,  2  414;   Vol.  3,  p. 

428. 


546  VERDICT.  [CHAP. 

But  a  verdict  "will  not  be  held  bad  for  mere  informality,  where  it  can 
be  determined  from  it  what  the  finding  is  upon  the  issues.0 

In  arriving  at  the  meaning  of  the  verdict,  mere  surplusage  should  be 
disregarded.*1 

Where  the.  language  used  is  equivocal,  it  must  be  understood  in  the 
sense  most  favorable  to  sustaining  the  verdict,  if  equally  consistent 
with  the  contract  and  the  circumstances  of  the  case.e 

In  actions  for  the  recovery  of  money,  the  verdict  must  assess  the 
amount  of  the  recovery/ 

It  has  been  held  that  a  verdict  for  a  certain  sum,  with  interest  from 
a  certain  date",  is  sufficient.8  t 

The  verdict  must  be  construed  with  reference  to  the  issues,  and  if  not 
responsive  to  the  issues  it  is  bad.11 

838.  On  several  issues. — The  verdict  should  pass  upon  all  of  the 
issues  presented  by  the  pleadings,'  and  where  there  is  a  general  verdict 
it  will  be  presumed  that  this  has  been  done. 

Where  there  are  several  paragraphs  of  complaint  to  which  demur- 
rers have  been  overruled,  and  one  or  more  of  the  paragraphs  are  bad, 
a  general  verdict  for  the  plaintiff  can  not  be  upheld.-" 

But  where  it  affirmatively  appears  in  the  record  that  the  finding  and 
judgment  was  upon  the  good  paragraph,  the  judgment  will  not  be  re- 
versed.11 

So  it  is  held  that  where  there  is  one  good  paragraph  in  the  complaint 
to  which  the  evidence  is  applicable,  the  verdict  will  be  upheld  where 
there  has  been  no  demurrer  to  the  bad  paragraph.1 

The  question  arises,  therefore,  upon  the  demurrer  to  the  bad  para- 

(c)  Jones    v.   Julian,    12   Ind.   274;        (g)  Gaff  u.  Hutchison,  38  Ind.  341 ; 
Conner  v.  Winton,  8  Ind.  315;  Collins    Thames  Loan,  etc.,  Co.  v.  Beville,  lOfl 
r.    Makepeace,    13   Ind.  448;    Hall   v.    Ind.  319. 

King,  29  Ind.  205;     Gaff    v.  Hutchi-  (h)  Hilliard  New   Trials,  2d  ed.,  p. 

son,  38  Ind.  341 ;   Mitchell  v.  Burch,  36  143,  §  26«, 

Ind.  529  ;  Hilliard  New  Trials,  2d  ed.,  (i)  Wright  v.  The  State,  8  Blkf.  385. 

pp.    134,    135,    136;     Proffatt's    Jury  ( j)  Wolf  v.  Schofield,  38  Ind.  175 ; 

Trials,  §  45.  Baily  v.  Trexel,  43  Ind.  432 ;  Perry  v. 

(d)  Conner  v.  Winton,  8  Ind.  315;  The  Greensburg,  etc.,  Turnpike  Co ,  43 
Veatch  v.  The  Stale,  60  Ind.  291 .  Ind.  321 ;  Cook  v.  Hopkins,  66  Ind.  208 ; 

(e)  Hilliard  New  Trials,  2d  ed.,  p.  Schafer  v.  The  State,  49  Ind.  460 ;  The 
133,  §  18,  citing   Nye  v.  Maxwell,  14  Evansville,  etc.,  Steam  Packet  Co.  v. 
Verm.  14;  Tomlinson  v.  Hamilton,  27  Wildman,63  Ind.  370;  Busk.  Prac.  186. 
Ind.  139.  (k)  Blasingame    v.    Blasingame,   24 

(f)  R.  S.  1881,  §548;  Trout  v.  West,  Ind.  86. 

29  Ind.  51.  (1)  Toralinson  v.  Hamilton,  27  Ind. 

139. 


XX.]  VERDICT.  547 

graph,  but  the  effect  of  the  error  in  overruling  the  demurrer  depends 
upon  the  form  of  the  verdict. 

The  record  should  show  that  the  finding  rests  upon  the  good  para- 
graph to  avoid  a  reversal,  but  it  is  clear  this  can  not  be  done  by  a  gen- 
eral verdict,  as  the  office  of  such  a  verdict  is  to  find  generally  for  the 
plaintiff  or  defendant." 

Where  there  is  a  general  verdict  upon  two  or  more  paragraphs 
of  the  complaint,  and  as  to  one  or  more  paragraphs  no  issue  has  been 
formed  by  answer,  the  verdict  can  not  be  sustained  unless  the  record 
shows  affirmatively  that  the  evidence  was  directed  to  and  the  judgment 
rendered  upon  the  paragraph  put  in  issue." 

839.  May  be  amended. — If  the  verdict  is  defective  it  should  be 
amended  before  the  jury  are  allowed  to  separate.0 

This  should  be  done  by  requiring  the  jury  to  return  to  their  room 
with  the  proper  instructions  as  to  the  correction  to  be  made.p 

Where  the  jury  have  been  allowed  to  separate  and  return  a  sealed 
verdict,  and  upon  reassembling  it  is  found  to  be  defective,  the  jury  may 
be  required  to  retire  to  their  room  and  make  the  proper  correction.*1 

Where  the  correction  is  merely  formal  it  may  be  made  by  the  direc- 
tion of  the  court  in  the  presence  of  the  jury  and  with  their  consent/ 

And  where  the  court  upon  the  return  of  the  verdict  discovered  a 
clerical  error  in  the  computation  of  the  amount  of  the  note  sued  upon, 
and  made  a  calculation  of  the  amount  differing  from  that  of  the  jury, 
and  calling  their  attention  thereto,  instructed  them  to  go  over  the  cal- 
culation, and  if  they  found  an  error  to  correct  it,  which  was  done  in 
the  jury-box,  without  retiring,  resulting  in  a  difference  of  some  seven 
dollars,  it  was  held  not  to  be  error.3 

Nor  is  it  error  to  permit  a  discussion  in  the  presence  of  the  court 
and  jury,  as  to  the  form  of  the  verdict  after  the  same  has  been  re- 
turned into  court.4 

There  can  be  no  amendment  of  a  verdict,  in  a  material  part,  after 
the  jury  have  been  allowed  to  separate  finally." 

(m)  Busk.  Prac.  186.  (q)  Tyrrell  v.  Lockhart,  3  Blkf.  136. 

(n)  Weireck  v.  Hoover,  8  Blkf.  379.  (r)  Harrison    v.    Jaquess,    29    Ind. 

(o)  Proffatl's  Jury  Trials,  §  456.  208 ;  Crocker  v.  Hoffman,  48  Ind.  207; 

(p)  Jones   v.  Julian,    12   Ind.   274;  McGregg  v.  The  State,  4  Blkf.  101. 

Reed  v.  Thayer,  9  Ind.  157;  Crocker  v.  (s)  Shaw  v.  Wood,  8  Ind.  518. 

Hoffman,  48  Ind.  207;    Noble  v.  Ep-  (t)  Ruffing  v.  Tilton,  12  Ind.  259. 

perly,  6  Ind.  468;    Kuger  v.  Bungan,  (u)  Trout  v.  West,  29  Ind.  51. 
10   Ind.  451 ;    Hyatt   v.  Clements,   65 
Ind.  12. 


548  VERDICT.  [CHAP. 

840.  Sealed  verdict. — After  the  jury  have  retired  to  deliberate 
upon  their  verdict,  they  can  not  separate,  except  upon  the  order  of  the 
court,  until  their  verdict  is  returned  into  open  court.     Such  a  separa- 
tion should  not  be  allowed  without  the  consent  of  both  parties  ;  but  it 
has  been  held,  in  a  number  of  cases,  that  the  mere  fact  that  the  jury, 
after  agreeing  upon  their  verdict,  have  been  allowed  by  the  order  of 
the  court  to  separate  until  the  meeting  of  the  court,  is  not  available  as 
error  on  appeal." 

Notwithstanding  these  authorities  the  separation  of  the  jury  should 
not  be  allowed  except  upon  consent.  If  the  verdict  is  agreed  upon 
before  separation,  there  could  be  no  influence  brought  to  bear  that 
could  affect  the  finding,  but  when  the  verdict  is  brought  into  court  it 
may  be  found  defective,  and  the  jury  being  sent  out  to  correct  it,  the 
whole  case  is  before  them  and  the  verdict  may  be  changed,  not  only  in 
form  but  in  substance,  and  this  may  result  from  outside  influences  that 
can  not  be  discovered  by  the  losing  party. 

When  the  jury  are  allowed  to  return  a  sealed  verdict  they  should 
deliver  the  same  to  their  foreman,  to  be  returned  at  the  next  meeting 

of  the  court. 

• 

841.  "When  and  how  returned. — The  verdict  must  be  returned 
in  open  court."    Consent  given  that  a  sealed  verdict  may  be  returned 
does  not  waive  the  right  to  have  the  verdict  returned  in  open  court,  in 
the  presence  of  all  the  jurors,  that  the  jury  may  be  polled. x 

But  where  the  parties  agree  that  the  jury  may  seal  their  verdict  and 
deliver  it  to  the  clerk,  the  jury  can  not  be  again  called  together. y 

The  court  can  not  depute  the  clerk  to  receive  the  verdict.  The  par- 
ties have  the  right,  upon  the  return  of  the  verdict,  to  poll  the  jury.2 
To  authorize  the  clerk  to  receive  the  verdict  necessarily  involves  the 
right  to  sit  as  judge  of  the  court  at  the  polling  of  the  jury.  This  can 
not  be  done  with  or  without  the  consent  of  the  parties.* 

The  adjournment  of  court  discharges  the  jury,b  therefore  a  verdict 
can  not  be  returned  after  the  term.  But,  where  a  cause  is  on  trial  at 
the  close  of  the  term,  it  may  be  continued  to  completion,0  and  in  such 

(v)  Barter  v.  Seaman,  3  Blkf.  27;  (x)  "Wright  v.  The  State,  11  Ind.  569. 

Lease  v.  Cool,  68  Ind.  166;  Drummond  (y)  Trout  v.  West,  29  Ind.  51 ;  Sage 

v.  Leslie,  5  Blkf.  453 ;  Bosley  v.  Far-  v.  Brown,  34  Ind.  464. 

quar,   2   Blkf.   61,   note   3 ;    Hayne  v.  (z)  Ante,  §  800. 

Thomas,  7  Ind.  38.     See,  on  this  point,  (a)  Willett  v.  Porter,  42   Ind.  250, 

Lucas  v.  Marine,  40  Ind.  289.  255. 

(w)  Rosserv.  McColly,  9  Ind.  587;  (b)  Ante,  §  801. 

Tube  v.  Eber,  19  Ind.  126.  (cj  R.  S.  1881,  §g  1349,  1379. 


XX.]  VERDICT.  549 

case  the  verdict  may  be  returned  after  the  close  of  the  term  as  fixed 
by  law.d 

A  verdict  may  be  returned  on  Sunday.6 

842.  Must  be  in  writing  and  signed. — The  statute  requires 
that  the  verdict  must  be  reduced  to  writing,  and  signed  by  the  fore- 
man^ 

The  objection  that  the  verdict  is  not  signed  must  be  made  at  the 
time  or  it  is  waived.8 

843.  When  becomes  part  of  the  record. — The  verdict  when 
returned  into  court  is  a  part  of  the  record  in  the  cause,  without  being 
copied  in  the  order  book.h 

844.  Compromise  or  chance  verdict. — A  verdict  arrived  at  by 
chance  is  void.1 

But  where  the  action  is  for  the  recovery  of  unliquidated  damages, 
the  jury  may  arrive  at  the  amount  of  the  verdict  by  a  compromise, 
although  the  result  may  be  reached  by  each  juror  setting  down  the 
amount  of  his  finding,  the  whole  amount  to  be  divided  by  twelve,  pro- 
vided this  is  done  for  the  purpose  of  ascertaining  the  views  of  each 
juror,  simply  as  a  means  of  arriving  at  an  agreement,  without  binding 
any  of  the  jurors  beforehand  to  the  amount  that  may  be  thus  reached.J 

The  law  is  thus  stated  in  Guard  v.  Risk  :  "In  support  of  the  mo- 
tion for  a  new  trial,  it  was  shown  by  affidavit,  that  after  the  jury  had  re- 
tired to  their  room  to  consult  of  their  verdict,  '  it  was  proposed  by  one 
of  them  that  each  juror  should  put  down  on  paper  such  amount  as  he 
pleased,  and  divide  the  aggregate  amount  by  twelve.'  All  the  jurors 
acceded  to  the  proposition,  though  there  was  no  agreement  or  under- 
standing among  them  that  the  result  of  the  figures  should  stand  as 
the  verdict.  And  the  jurors  having  proceeded  in  accordance  with  the 
proposal,  and  the  result  being  announced,  it  was  agreed  by  them  that 

(d)  Wright  r.  The  State,  5  Ind.  290;  (i)  Dunn  v    Hall,  8  Blkf.  32;    Hil- 
Bridgewater  v.  Bridgewater,  62  Ind.  82.  Hard  New  Trials,  2d  ed.,  p.  160,  §12, 

(e)  Corry  v.  Silcox,  5  Ind.  370;  Ros-  and  authorities  cited;  Warren  v.  Rob- 
ser  v.  McColley,  9  Ind.  587;  McCorkle  inson,  1   Am.  Dec.  38,  and  note;  s.  c., 
v.  The  State,  14  Ind.  39;  Joy  v.  The  1    Root,    194;    Proffatt's    Jury   Trials, 
State,  14  Ind.  139;  Jones  v.  Johnson,  §406. 

61  Ind.  257.  (j)  Dunn  v.  Hall,  8  Blkf.  32;  Guard 

(f)  R.  S.  1881,  §  544.  v.  Risk,  11  Ind.  156;    The   St.  Louis, 

(g)  Wolcott  v.  Yeager,  11  Ind.  84;  etc.  R.  W.  Co.  ».  Myrtle,  51  Ind.  566; 
Clarke  v.  Heck,  17  Ind.  281.  Proffatt's  Jury  Trials,  §  407. 

(h)  R.   S.   1881,   §  650;    Sanders   v. 
Sanders.  24  Ind.  13". 


550  VERDICT.  [CliAP. 

that  result  should  be  their  finding  in  the  case,  and  the  verdict  was  re- 
turned accordingly.  In  this  we  perceive  no  misconduct  of  the  jury. 
The  law  is  well  settled,  that,  in  actions  for  unliquidated  damages,  the 
jury  may  adopt  the  process  resorted  to  in  this  case  to  obtain  a  medium 
sum  to  be  submitted  for  a  verdict. "k 

This  language  is  quoted  approvingly  in  the  case  of  the  St.  X<ouis, 
etc.,  K.  W.  Co.  v.  Myrtle. 

To  permit  a  jury  to  arrive  at  a  verdict  by  such  means  is  of  very 
doubtful  propriety.  It  is  confined  by  the  authorities  to  actions  where 
the  damages  to  be  recovered  are  unliquidated,  and  the  jury  must  not  be 
bound  in  any  way  beforehand  to  return  a  verdict  for  the  amount  thus 
ascertained.1 

845.  Set-off;  counterclaim. — Where  there  is  a  set-off  or  counter- 
claim the  verdict  should  be  for  the  difference  between  the  plaint- 
iff's claim  and   that  of  the   defendant,  and  the  amount  of  damages 
found  must  be  so  regarded  if  there  is  nothing  in  the  verdict  to  show  to 
the  contrary.     If  the  defendant  is  entitled  to  recover  under  the  evi- 
dence the  verdict  should  be  for  the  excess." 

VERDICTS   IN   PARTICULAR   CASES. 

846.  Replevin. — "  In  actions  for  the  recovery  of  specific  personal 
property  the  jury  must  assess  the  value  of  the  property,  as  also  the 
damages  for  the  taking  or  detention,  whenever,  by  their  verdict,  there 
will  be  a  judgment  for  the  recovery  or  return  of  the  property."11 

Where  the  verdict  will  not  result  in  a  judgment  for  the  recovery  or 
return  of  the  property  the  value  of  the  property  need  not  be  fixed  by 
the  verdict. 

It  is  held  that  a  general  verdict  "  for  defendant"  is,  in  effect,  a  find- 
ing that  the  plaintiff  unlawfully  took  the  property,  and  that  the  de- 
fendants are  entitled  to  the  possession.0 

So  a  finding  that  "  the  possession  of  the  property  mentioned  in  the 
complaint  be  given  to  the  plaintiff,"  was  held  equivalent  to  a  finding 
of  property  in  the  plaintiff,  and  that  he  was  entitled  to  possession. p 

(k)  Guard  -c.  Risk,  11  Ind.  156,  159;  (m)  R.  S.  1881,  §  571. 
citing  Dorr  v.  Fenno,  12  Pick.  521;  (n)  R.  S.  1881,  §  549. 
Grinnell  v.  Phillips,  1  Mass.  530;  (o)  Wheat  v.  Catterlin,  23  Ind.  85; 

Harvey  v.  Rickett,  15  Johns.  87.  Wolf  v.  Blue,  5  Blkf.  153. 

(1)  Dunn  v.  Hall,  8  Blkf.  32 ;   Boyn-         (p)  Robertson  v.    Caldwell,   9  Ind 

ton  v.  Trumbull,  49  N.  H.  408.  514;  Tardy  v.  Howard,  12  Ind.  404. 


XX.  J  VERDICT.  551 

But  neither  of  these  verdicts  would  authorize  a  judgment  for  the  re- 
covery or  return  of  the  property,  as  the  value  is  not  found."* 

The  defendant  can  not  complain,  on  appeal,  that  the  verdict  does 
not  assess  the  damages,  the  verdict  being  for  the  plaintiff/ 

A  party  can  not  be  heard  to  complain  of  a  finding  in  his  own  favor.8 

The  cases  are  not  uniform  upon  the  question  whether,  where  the 
verdict  is  for  the  plaintiff,  there  should  be  a  finding  that  the  property 
was  unlawfully  taken  or  detained.  The  statute  does  not  require  it, 
and  there  is  no  good  reason  why  the  general  finding  for  the  plaintiff 
should  not  be  held  to  cover  this  issue.  Some  of  the  cases  so  hold.1 

Other  cases  hold  that  the  verdict  must  find  that  the  property  was 
unlawfully  taken  or  detained,  as  the  case  may  be.11 

In  Ridenour  v.  Beekman,thecourt  say :  "A  material  part  of  the  issue 
joined  was  not  passed  upon  by  the  verdict.  The  plaintiff  may  have 
had  the  right  to  the  property  and  to  the  possession  thereof  at  the  com- 
mencement of  the  action,  and  it  may  have  been  replevied  in  Miami 
county,  yet  this  did  not  entitle  him  to  judgment  against  the  defend- 
ants, either  for  costs  or  damages,  unless  the  latter  wrongfully  detained 
the  property,  which  is  not  found  by  the  verdict." 

There  is  a  clear  inconsistency  in  the  decided  cases.  It  is  held  that  a 
general  finding  for  the  defendant  is  equivalent  to  a  finding  that  he  did 
not  detain  the  property,  and  that  the  property  was  unlawfully  taken 
by  the  plaintiff.' 

It  would  seem  to  follow,  necessarily,  that  a  general  finding,  upon  the 
same  issue,  for  the  plaintiff,  would  be  equivalent  to  a  finding  that  the 
defendant  did  unlawfully  detain  the  property.  But,  as  I  have  shown, 
the  latest  decided  case  is  the  other  way. 

Where  the  taking  or  detention  is  admitted  in  the  answer,  no  finding 
on  the  point  is  necessary." 

The  verdict  must  describe  the  property  with  such  certainty  that  a 
judgment  may  be  rendered  therefor.* 

But  where  the  finding  is  for  all  of  the  property  in  controversy,  and 

(qi  Wheat  v.  Catterlin,  23  Ind.  85;  Huff  v.  Gilbert,  4  Blkf.  19;  Ridenour 

Tardy  r.  Howard,  12  Ind.  404;  Mitch-  v.  Beekman,  68  Ind.  236. 

ell  •»>.  Burch,  36  Ind.  529;  McKeal  v.  (v)  Wheat  ».  Catterlin,  23  Ind.  85; 

Freeman,  25  Ind.  151.  Tardy  v.  Howard,  12  Ind.  404;  Wolf 

(r)  Anderson  v.  Lane,  32  Ind.  102.  v.  Blue,  5  Blkf.  153. 

(s)  Wilcoxon   v.    Annesly,   23  Ind.  (w)   Wilcoxon  v.  Annesly,  23  Ind. 

285.  285. 

(t)  Stephens  v.  Scott,  13  Ind.  515;  (x)  Dowell   v.  Richardson,    10  Ind. 

Clark  v.  Heck,  17  Ind.  281.  673. 

(u)  Crouch  v.   Martin,  3  Blkf.  256; 


552  VERDICT.  [CHAP. 

it  is  properly  described  in  the  complaint,  it  is  sufficient  to  refer  to  it  as 
"  said  property,"  or  the  property  described  in  the  com  plaint. y 

The  question  whether  the  property  shall  be  returned  or  not  is  for  the 
court,  and  need  not  be  found  in  the  verdict. z 

If  the  verdict  is  for  the  plaintiff,  and  the  property  is  not  returned, 
he  is  entitled  to  judgment  for  its  value  whether  the  complaint  asks  for 
damages  or  not.  The  verdict  must  find  the  value  of  the  property, 
but  it  is  no  objection  that  the  value  found  is  greater  than  that  alleged 
in  the  complaint.  The  complaint  may  be  amended,  or  will  be  deemed 
amended  on  appeal,  to  correspond  with  the  verdict,  and  the  plaintiff  is 
entitled  to  recover  the  amount  found  by  the  jury." 

Where  the  verdict  is  for  the  defendant,  and  the  property  has  been 
taken  on  the  writ,  the  value  of  the  property  must  be  found  to  entitle 
him  to  a  judgment  for  its  return  or  for  its  value. b 

But  he  may  recover  the  value  of  the  property  in  a  suit  upon  the 
bond  without  such  a  finding.0 

The  objection  to  the  judgment  that  the  verdict  does  not  find  the 
value  of  the  property  must  be  raised  in  the  court  below,  and  can  not 
be  first  presented  on  appeal.*1 

So  of  objections  to  the  verdict. 

It  was  held  in  an  early  case  that  damages  could  not  be  assessed  b<  - 
yond  the  amount  claimed  in  the  complaint.6  But  later  cases  are  tlio 
other  way/(1) 

847.  In  highway  cases. — In  an  action  for  the  location  or  vaca- 
tion of  a  highway,  where  the  finding  is  for  the  petitioners,  a  verdict  in 
,  their  favor,  generally,  is  insufficient.  Before  the  county  commission- 
ers certain  jurisdictional  facts  must  be  found.  On  appeal  to  the  cir- 
cuit court  the  cause  is  tried  de  now,  and  the  verdict  of  the  jury  must 
find  the  same  facts  to  support  a  judgment  for  the  petitioners.*5 

In  the  case  cited  the  verdict  was:  "  We,  the  jury,  find  that  the  pro- 
posed highway  in  question  would  be  of  public  utility." 

The  court  say  of  this  verdict :  "  The  verdict  of  the  jury  on  the  trial 
of  this  cause  was  defective  in  this,  that  it  was  expressly  limited  by  its 
terms  to  a  finding  upon  one  single  question  of  fact  and  none  other.  On 
the  trial  de  now  of  a  highway  case  in  the  circuit  court  there  should  be 

(y)  Anderson  i).  Lane,  32  Ind.  102.  (d)  Watts  v.  Green,  30  Ind.  98. 

(z)  Plant  v.  Crane,  7  Ind.  486.  (e)  O'Neal  v.  Wade.  3  Ind.  410. 

(a)  The  Singer  Mfg.  Co.  v.  Doxey,         (f)  W ebb  v.  Thompson,  23  Ind. 428; 
65  Ind.  65.  post,  \  848. 

(b)  Chissom  v.  Lamcool,  9  Ind.  530;         (g)  Scraper   v.  Pipes,  59  Ind.  158, 
Conner  «.  Comstock,  17  Ind.  90.  165. 

(c)  Whitney  v.  Lehmer,  26  Ind.  503.         (1)  See  Vol.  3,  p.  480. 


XX.]  VERDICT.  .  553 

a  general  finding  for  the  petitioners  by  the  court  or  jury  trying  the 
cause  of  all  the  facts  which  the  board  of  commissioners  would  have 
been  required  to  find  in  such  a  case  ;  otherwise,  the  verdict  is  ill  and 
a  venire  de  novo  must  issue." 

It  has  been  held  that  the  board  of  commissioners  must  find,  as  jur- 
isdictional  facts :  1 .  That  the  requisite  notice  of  the  petition  had  been 
given ;  2.  That  the  petition  was  signed  by  twelve  freeholders  of  the 
county ;  3.  That  six  of  the  petitioners  were  of  the  immediate  neigh- 
borhood of  the  proposed  highway.11 

According  to  the  case  of  Scraper  v.  Pipes  the  jury  must,  in  their 
verdict,  find  all  of  these  facts,  as  well  as  that  the  road  is  of  public 
utility.' 

Where  the  finding  is  for  the  remonstrators,  if  the  remonstrance  is 
on  the  ground  that  the  road  is  not  of  public  utility,  a  general  finding 
in  their  favor  is  sufficient.  If  the  remonstrance  is  for  damages,  a  ver- 
dict for  the  remonstrator,  fixing  his  damages,  has  been  held  suf- 
ficient. j 

848.  Verdict  for  more  than  amount  asked  for  in  the  com- 
plaint.— The  fact  that  the  amount  found  by  the  verdict  is  more  than 
is  claimed  in  the  complaint,  does  not  vitiate  it.k 

If  the  amount  found  is  not  more  than  is  actually  due,  the  complaint 
may  be  amended  to  correspond  with  the  verdict,  and  will  be  deemed 
to  lie  so  amended  on  appeal.1 

It  was  held  otherwise  in  some  of  the  earlier  cases."1  But  these  cases 
are  clearly  overruled  by  the  later  decisions. 

Where  there  is  a  default,  the  judgment  can  not  exceed  the  amount 
demanded,  but  this  is  regulated  by  an  express  provision  of  the  statute." 

If  the  verdict  is  for  more  than  is  due  the  plaintiff,  it  may  be  set 
aside  on  the  ground  that  the  amount  of  the  finding  is  too  large.0  But 
the  plaintiff  may  avoid  the  error  by  entering  a  remittitur  for  the  excess.p 

(h)  Little  v.  Thompson,  24  Ind.  146.  (1)   Webb  v.  Thompson,  23  Ind.  426. 

(i)  Scraper  v.   Pipes,    59    Ind.    158,  (m)  Roberts  v.   Muir,    7    Ind.   544; 

165;  Housworth  v.  BloomhufF,  54  Ind.  O'Neal  v.  Wade,  3  Ind.  410;  May  v. 

487.  The  State  Bank,  9  Ind.  233. 

( j)  The  Board  of  Comm'rs  of  Grant  (n)  R.  S.  1881,  ?  385;  ante,  §  425. 

Co.  v.  Small,  61  Ind.  318.  (o)  R.  S.  1881,  §  559. 

(k)  Webb  v.  Thompson,  23  Ind.  (p)  Murray  v.  Phillips,  59  Ind.  56; 
4'J8;  Robinson  v.  Jamison.  33  Ind.  122;  Lambert  r.  Blackman,  1  Blkf.  59;  Col- 
Raymond  v.  Williams,  24  Ind.  416;  dren  v.  Miller,  1  Blkf.  296;  Browning 
Barnes  i;.  Smith.  34  I::J.  516;  Baker  v.  Meritt,  61  Ind.  425;  Hilliard's  New 
v.  Simmons,  40  Ind.  442;  ante,  §  425.  Trials.  2  ed.,  p.  152.  ?  3'2. 


554  VERDICT.  [CHAP. 

The  remittitur  may  be  entered  in   the  supreme  court  to  avoid  a  re- 
versal.q 

A  remittitur  may  be  entered  where  the  finding  before  a  justice  of 
the  peace  exceeds  the  amount  of  which  the  justice  has  jurisdiction  as 
well  as  the  amount  claimed.  The  excess  of  the  verdict,  over  the 
amount  for  which  the  justice  may  render  judgment,  is  void  and  not 
the  entire  verdict. r 

SPECIAL  VERDICT. 

849.  When  may  be  returned. — The  jury  may  return  either  a 
general  or  special  verdict,  at  their  option,  unless  instructed  as  to  the 
form  of  their  verdict  by  the  court.3 

And  the  court  may  order  a  special  verdict  without  being  requested.' 
But  either  party  may  request  that  a  special  verdict  be  returned  upon 

any  or  all  of  the  issues,  and  the  court  must  so  instruct  the  jury,  and 

they  must  find  a  special  verdict." 

850.  May  be    returned  with    general  verdict. — Ordinarily, 
where  a  special  verdict  is  found,  a  general  verdict  should  not  be  re- 
turned.    Buj;  there  may  be  a  special  verdict  as  to  a  part  of  the  issues 
only,  in  which  case  a  general  verdict  is  necessary/ 

Where  the  jury  have  not  been  instructed  as  to  the  form  of  their  ver- 
dict, it  is  not  error  for  them  to  return  both  a  general  and  special  ver- 
dict,' 

Where  both  a  general  and  special  verdict  are  returned,  the  special 
verdict  controls  where  they  are  conflicting,  as  in  case  of  special  find- 
ings of  facts  in  answer  to  interrogatories.  * 

851.  What  must  find. — It  is  the  office  of  a  special  verdict  to  find 
the  facts, y  not  conclusions  of  law.7-     Nor  the  evidence.8 

(q)  Frazer  v.  Boss,  66  Ind.  1 ;  Hum-  (w)  Hershman  v.  Hershman,  63  Ind. 
phrey  c.  Merit,  51  Ind.  197.  451,458;  Webster  v.  Bebbinger,  70 

(r)  The  Louisville,  etc.,  R.  W.  Co.  Ind.  9.  But  see  Todd  v.  Fenton,  66 
v.  Breckenridge,  64  Ind.  113.  Ind.  25. 

(s)  Ruffing  v.  Tilton,  12  Ind.  259;  (x)  Hershman  v.  Hershman,  63  Ind. 
The  Michigan  Southern,  etc.,  R.  R.  Co.  451. 

v.  Bivens,  13  Ind.  263;   Bird  v.  Lanius,    •      (y)    Hopkins  v.  Stanley,  43  Ind.  55o  : 
7  Ind.  615.  Locke    v.    The     Merchants'    National 

(t)  Weatherbya.  Higgins,  6  Ind.  73.     Bank,  66  Ind.  353;    Graham   v.  Th«; 

(u)  The  Michigan  Southern  R.  R.  State,  66  Ind.  386 ;  Ex  parte  Walls,  73 
Co.  v.  Bivens,  13  Ind.  263;  Bird  v.  La-  Ind.  95;  Pittsburgh,  etc.,  li.  U.  Co.  v. 
nitis,  7  Ind.  615.  Spencer,  98  Ind.  186. 

(v)  Graham  v.  The  State,  66  Ind.  (z)  Keller  v.  Boatman,  49  Ind.  104. 
".86,  395.  (a)  Locke  v.  The  Merchants'  Bank, 

66  Ind.  353;  Gordon  v.  Stockdale,  89 
Ind.  240. 


XX.]  VKKDICT.  555 

The  verdict  must  find  all  of.  the  facts  necessary  to  the  recovery  of 
the  party  in  whose  favor  judgment  is  rendered.1' 

There  is  a  long  line  of  decisions  in  this  state  holding  that  there  must 
be  a  finding  upon  all  of  the  issues,  or  the  special  verdict  will  be  insuf- 
ficient.0 

It  was  held,  also,  that  the  verdict  must  find  all  of  the  facts  affirming 
or  negativing  every  issue  formed  by  the  pleadings,  and  the  court  could 
not  supply  an  omission  to  find  any  such  facts". d 

In  Hpraworth  v.  Bloomhuff  it  is  said  :  "  Our  code  of  practice  defines 
a  special  verdict  thus:  'A  special  verdict  is  that  by  which  the  jury 
find  the  facts  only,  leaving  the  judgment  thereon  to  the  court.'  In  Bird 
v.  Lanius,  7  Ind.  615,  it  was  held  by  this  court  that  by  a  special  verdict: 
was  meant,  '  not  an  isolated  fact  tending  to  support  or  defeat  an  issue, 
but  it  is  an  issue  joined  between  the  parties,  arising  upon  a  cause  of 
action  in  the  complaint  and  a  denial  of  it  in  the  answer,  or  upori  a  dt> 
fense  set  up  in  the  answer  put  in  issue  by  the  reply.'  A  special  vrr- 
dict  must  contain  a  finding  by  the  jury  pro  or  con,  as  to  every  material 
fact  in  issue  necessary  to  constitute  the  plaintiff's  cause  of  action  or 
the  defendant's  defense.  And  the  reason  for  this  requirement  js  that 
the  court  can  neither  supply  an  omitted  necessary  fact  nor  can  it  ren- 
der judgment  upon  an  imperfect  verdict.  If  the  special  verdict  should 
not  contain  a  finding  by  the  jury,  either  for  or  against  each  material  fact 
in  issue  necessary  to  constitute  the  cause  of  action  or  cause  of  defense, 
then  the  proper  remedy  of  the  aggrieved  party  is  a  motion  to  set  aside 
the  verdict  and  for  a  venire  de  now." 

These  cases,  and  the  rule  thus  established,  have  been  materially 
modified  by  the  later  decisions.6 

In  Graham  v.  The  State  the  law  is  thus  stated:  "  There  is  no  differ- 
ence between  a  special  verdict  and  a  special  finding  by  the  court,  ex- 
cept that  the  special  verdict  finds  the  facts  only,  and  the  court  after- 
ward pronounces  or  rather  applies  the  law  to  the  facts  found  and  ren- 
ders judgment  accordingly;  while  in  a  special  finding  the  court  states 

(b)  Goldsby  v.   Robertson,  .1    Blkf.         (d)   Bird    v.    Lanius.    7    Ind.    6K>; 
247 ;  Housworth  v.  Bloomhuff,  54  Ind.  Housworth  v.  Bloomhuff,  54  Ind.  487. 
487,   497;    Stropes   v.   The    Board   of  497 ;  Locke  v.  The  Merchants'  National 
Comm'rs,  etc.,  72  Ind.  42;    Hilliard's  Bank,  66  Ind.  353. 

New  Trials,  2  ed.,  pp.  130,  131.  (e)  Graham  v.  The   State,   66  Ind. 

(c)  Bird    v.    Lanius,    7    Ind.   615;  386;   Martin    v.   Cauble,    72    Ind.  67; 
Schmitz  v.  Lauferty,  29  Ind.  400;   De-  Stropes  v.  The  Board,  etc.,  72  Ind.  42; 
hority  v.  Nelson,  56  Ind.  414;  Gulick  Ex  parte  Walls,  73  Ind.  95;  Jones  v. 
v.  Connelly,  42  Ind.  134;  Housworth  Baird,  76  Ind.  164;  Stumph  ».  Bauer, 
v.  Bloomhuff,  54  Ind.  487;  Whitworth  76  Ind.  157. 

r.   Ballard,  56  Ind    279;  Busk.  Prac., 
207   220. 


556  VERDICT.  [CHAP. 

the  conclusions  of  law  upon  the  facts  found,  so  that,  the  parties  can 
except  to  the  conclusions.  Neither  a  special  verdict  nor  a  special  find- 
ing can  do  more,  in  relation  to  facts,  than  to  find  or  state  them.  But 
what  facts  are  to  be  thus  found  or  stated?  Clearly  those  that  are 
proved  upon  the  trial,  and  none  other. 

"When  the  special  verdict  has  found  the  facts  proved  on  the  trial  it 
has  performed  its  entire  office ;  and  when  the  special  finding  has  stated 
the  facts  proved  on  the  trial  it  has  performed  its  entire  office  so  far  as 
the  facts  are  concerned.  Of  course  the  facts  may  be  proved  by  cir- 
cumstances or  otherwise,  as  in  any  other  mode  of  trial. 

"  But  suppose  there  are  issues  in  the  cause  concerning  which  no  evi- 
dence is  given.  There  is  nothing  in  such  case  in  relation  to  those  issues 
for  the  court  or  jury,  in  finding  specially,  to  pass  upon.  No  fact  in 
relation  to  them  has  been  proved,  and,  hence,  no  fact  in  relation  to 
them  is  to  be  found  or  stated,  because,  as  we  have  seen,  the  special 
verdict  or  finding  is  confined  to  the  facts  proved. 

"In  the  case  supposed,  it  would  seem  that  in  rendering  judgment 
the  issues,  concerning  which  no  facts  are  found,  should  be  regarded  as 
not  proved  by  the  party  on  whom  the  burden  of  the  issue  or  issues 
lies.  This  leads  us  to  inquire  what  was  meant  by  the  provision,  that 
the  court  may  direct  the  jury  to  give  a  special  verdict  upon  all  or  any 
of  the  issues. 

"  This  provision,  taken  in  connection  with  the  others,  seems  to  us  to 
have  meant  that  the  court  might  direct  the  jury  to  find  the  facts 
specially,  which  might  be  proved  in  relation  to  some  of  the  issues,  and  to 
find  a  general  verdict  upon  the  others.  Such  practice  might,  in  some 
peculiar  cases,  subserve  a  good  purpose,  but  we  have  never  known 
it  to  be  resorted  to. 

"  The  provision  clearly  does  not  mean  that  the  jury  are  to  pass  upon 
any  of  the  issues,  in  finding  a  special  verdict,  in  any  other  way  than  to 
find  the  facts  proved.  And  if  the  facts  proved  and  found  do  not  de- 
termine some  o/the  issues,  those  issues  must  be  regarded  as  not  proved 
by  the  party  having  the  burden  of  proof  resting  upon  him. 

"Applying  the  statute,  with  this  construction,  to  the  case  before  us, 
the  special  finding  was  not  objectionable,  because  it  did  not  pass  upon 
all  the  issues.'' 

It  will  be  noticed  that  this  case,  though  not  referring  to  them,  is 
clearly  in  conflict  with  the  earlier  decisions. 

According  to  the  rule  here  stated  it  is  not  a  valid  objection  to  a 
special  verdict  that  it  does  not  find  upon  all  of  the  issues,  nor  that  there 
is  an  omission  to  fi)id  a  given  fact.  When  the  special  finding  is  silent 
upon  any  question  of  fact  it  is  not  a  defect  in  the  verdict.  The  court 


VERDICT.  557 

must  construe  the  verdict  against  the  party  having  the  burden  of  the 
issue,  as  to  that  fact,  that  the  same  is  not  proved.  If,  therefore,  the 
fact  must  be  proved  by  the  plaintiff  to  entitle  him  to  recover,  the 
judgment  must  be  against  him.  If  there  was  proof  of  the  fact  the 
verdict,  though  not  defective  in  form,  may  be  set  aside  upon  a  motion 
for  a  new  trial,  on  the  statutory  ground  that  the  verdict  is  contrary  to 
la\v.f 

If  there  is  a  finding  of  any  fact,  the  question  whether  the  finding  is 
sustained  by  the  evidence  is  grdUnd  for  a  new  trial. 

852.  Draft  may  be    prepared  by  the  parties. — The  proper 
preparation  of  a  special  verdict,  in  many  cases,  requires  considerable 
skill,  and  a  jury  would  be  unable  to  prepare  it  in  the  proper  form. 

It  is  held,  however,  that  a  form  of  verdict  may  be  drawn  by  the  par- 
ties, each  stating  the  facts  as  they  believe  they  have  been  established 
by  the  evidence.  These  drafts  may  properly  be  submitted  to  the 
jury,  leaving  them  to  return  either  that  they  may  agree  upon,  with 
any  changes  that  they  may  find  necessary  to  conform  the  facts  found  to 
the  proof.8 

It  isjield  in  the  Pittsburg,  etc.,  R.  R.  Co.  v.  Ruby,  that  the  court 
must  pass  upon  the  sufficiency  of  the  verdict,  if  any  such  question 
should  be  raised,  and,  therefore,  the  verdict  could  not  properly  be  pre- 
pared by  the  judge. 

A  reasonable  opportunity  should  be  given  counsel  for  each  of  the 
parties  to  prepare  a  draft  of  the  verdict,  and  after  this  is  done  if  either 
party  fails  to  do  so  he  can  not  complain  that  but  one  draft  was  sub- 
mitted to  the  jury,  and  that  the  one  drawn  by  his  adversary.h(l) 

INTERROGATORTIES. 

853.  Must  be  submitted  at  the  request  of  either  party. — 
In  all  cases,  when  requested  by  either  party,  the  court  must  instruct 
the  jury  "if  they  render  a  general  verdict  to  find  specially  upon  par- 
ticular questions  of  fact  to  be  stated  in  writing." ' 

This  section  makes  it  imperative  upon  the  court  to  require  a  finding 
upon  particular  questions  of  fact  when  requested  at  the  proper  time. (2) 

(f)  Exparte  Walls,  73  Ind.  95,  110;         (h)  The  Pittsburgh,  etc.,  R.  R.  Co. 
ante,  §  810.     Post,  §  916;  Johnson  v.     v.  Ruby,  38  Ind.  294. 

Putnam,  95  Ind.  57.  (1)  See    further   as  to  what   special 

(g)  The     Pittsburgh,     Ft.    Wayne,     verdict  should  contain,  Vol.  3,  p.  431. 
etc.,  R.  R.  Co.  v.  Ruby,  38  Ind.  294;         (i)  R.  S.  1881,  §  546. 

Busk.  Prac.  208;  Hopkins  v.  Stanley,         (2)' Vol.  3,  p.  431. 
43  Ind.  553,  558. 


558  VERDICT.  [CHAP. 

But  the  court  may  submit  interrogatories  to  the  jury  without  such  re- 
quest. J 

854.  "When  request  to  submit  must  be  made. — A  party  de- 
siring the  submission  of  interrogatories  to  the  jury  must  make  the  request 
and  submit  the  interrogatories  to  the  court,  before  the  argument  com- 
mences, or  they  may  properly  be  refused  as  coming  too  late.k 

855.  Form. — The  finding  of  particular  questions  of  fact,  provided 
for  in  the  statute,  differs  materially  from  a  special  verdict.  0) 

As  we  have  seen,  it  is  the  office  of  a  special  verdict  to  find  all  of  the 
material  facts  proved.1 

A  finding  of  particular  questions  of  fact  may  be  as  to  an  isolated 
fact,  or  the  interrogatories  may  be  so  formed  as  to  cover  all  of  the 
facts  proved.™ 

To  elicit  a  special  finding,  under  this  clause  of  the  statute,  interroga- 
tories must  be  submitted,  leaving  theory  to  determine  the  answers. 
The  interrogatories  may  be  leading." 

The  better  practice,  and  the  one  most  frequently  adopted,  is  to  put 
them  in  leading  form,  so  that  the  answers  thereto  may  be  yes  or  no, 
though  this  is  not  absolutely  necessary,  nor  can  it  be  done  in  all  cases. 

They  should  be  so  framed  that  each  interrogatory  will  call  for  a  find- 
ing of  one  single  fact,  and  should  not  in  any  case  be  double.0 

But  an  interrogatory  that  is  in  the  alternative,  requiring  the  jury  to 
answer  whether  one  or  the  other  of  two  antagonistic  facts  exists,  is 
not  double. 

Thus,  an  interrogatory:  "Did  the  defendants  authorize  Tinkler  to 
sign  said  memorandum  for  them  by  his  own  name,  or  did  he  sign  it  at 
his  own  instance?"  the  answer  being  :  "At  his  own  instance,"  was 
held  not  to  be  double  and  to  have  been  properly  answered. p 

This  is  placed  upon  the  ground  that  an  affirmative  answer  to  one  of 
the  alternative  propositions  was,  at  the  same  time,  a  negative  answer 
to  the  other ;  therefore,  the  question  called  for  but  one  answer  and  was 
not  double. 

(j)  Killian  v.  Eigenmann,    57  Ind.  (1)  Ante,  §  851. 

480;  Paine  v.  The  Lake  Erie,  etc.,  R.  (m)   Manning  r.  Gasharie,   27  Ind. 

R.  Co.,  31  Ind.  283;  The  Toledo,  etc.,  399;  Todd  v.  Fenton,  06  Ind.  25. 

R.  W.  Co.  v.  Hammond,  33  Ind.  379  ;  (n)  Rice  v.  Rice,  6  Ind.  100. 

Busk.  Prac.  215.  (o)  Rosser  v.  Barnes,  16  Ind.  502, 

(k)  Ollam   v.  Shaw,    27   Ind.    388;  Chapin  v.  Clapp,  29  Ind.  614. 

Malady  r.  McEnary,  30  Ind.  273;  Mil-  Cp)  Noakes  v.  Morey,  30  Ind.  103, 

ler  r.  Voss,  40  Ind.  307;    Glasgow  v.  108. 

Hobbs,  52  Ind.  239.  (1)  Vol.  3,  p.  431. 


XX.]  VERDICT.  559 

An  interrogatory  that  inquires,  generally,  whether  any  of  the  facts 
r.lleged  in  the  complaint  are  not  true,  should  not  be  submitted  to  the 
jury.q  Nor  is  it  proper  to  make  the  interrogatory  so  broad  as  to  cover 
the  whole  issue  to  be  determined  by  the  jury,  as  this  renders  the 
answer  equivalent  to  a  general  verdict/ 

The  parties  have  a  right  to  call  the  attention  of  the  jury  to  a  single 
fact,  or  a  number  of  isolated  facts,  material  to  the  issue,  and  require  a 
Hading  thereon.  To  require  the  interrogatory  to  be  so  broad  as  to 
cover  one  entire  cause  of  action  or  defense,  embraced  within  the  issues, 
\\ould  be  to  deprive  the  parties  of  the  right  given  them  by  statute. 

An  interrogatory,  in  asking  whether  one  fact  exists  or  not,  must  not 
assume  the  existence  of  another  material  fact.8 

856.  Evidence ;  conclusions  of  law. — While  the  statute  clearly 
contemplates  a  finding  upon  less  than  the  whole  matter  put  in  issue, 
it  is  not  proper  to  inquire  for,  nor  can  the  jury  properly  set  out  the 
evidence.     They  must  find  the  facts  established  by  the  evidence.1 

Aujnterrogatory  that  asks  for  a  conclusion  of  law  is  improper." 
The  construction  of  written  instruments,  where  there  is  no  ambiguity, 

is  for  the  court,  and  an  interrogatory  asking  for  such  construction 

should  not  be  submitted  to  the  jury.v 

857.  Must  be  as  to  a  material  fact. — The  interrogatories  must 
call  for  a  finding  upon  facts  material  and  pertinent  to  the  issues." 

Objection  to  the  interrogatories  must  be  made  when  they  are  sub- 
mitted, or  the  objection  is  waived.1 

858.  Must  be  fully  and  fairly  answered. — When  interroga- 
tories are  submitted  to  the  jury  they  must  be  definitely  and  completely 
answered. y 

The  jury  can  not  answer  that  they  do  not  know.*  If  there  is  any 
evidence  as  to  the  fact  inquired  about  they  must  determine  the  question 

(q)  Morse  v.  Morse,  25  Ind.  156.  (w)  Donohue  v.  Dyer,  23  Ind.  521 ; 

ir)  Todd  v.   Fenton,    66    Ind.   25;  Manning   v.   Gasharie,   27   Ind.   399; 

Manning  v.  Gasharie,  27  Ind.  399.  Schenck  r.  Butsch,  32  Ind.  338. 

(s)  The  Toledo  and  Wabash  K.  W.  (x)  Brooker  v.  Weber,  41  Ind.  426; 

Co.  v.  Goddard,  25  Ind.  185.  The  O.  &  M.  R.  W.  Co.  v.  Dickerson, 

(t)   Manning  v.   Gasharie,   29   Ind.  59  Ind.  317. 

399;  Busk.  Prac.  213.  (y)  Rosser  v.  Barnes,  16  Ind.  502;  - 

(a)  The  Toledo  and  Wabash  R.  W.  Hopkins  r.  Stanley,  43  Ind.  553;  Pe- 

Co.  v.  Goddard,  25  Ind.  185.  ters  v.  Lane,  55  Ind.  391.    But  see  The' 

(v)  Symmes  v.  Brown,  13  Ind.  318;  Mutual  Benefit,  etc.,  Co.  r.  Cannon,  48 

Comer  v.  Hines,  49  Ind.  482;   Busk.  Ind.  264. 

Prac.  213.  (z)   Buntin  v.  Rose,  16  Ind.  209. 


560  VERDICT.  [CHAP. 

according  to  the  preponderance  of  the  evidence,  as  in  case  of  a  general 
verdict,  or  disagree.  If  there  is  no  evidence  on  the  point  they  may 
answer  that  there  is  no  evidence.*  If  the  evidence  is  evenly  balanced 
the  finding  should  be  against  the  party  having  the  burden  of  the 
issue. b 

If  the  answers  are  not  full  and  responsive  the  objection  must  l>e 
made  before  the  jury  is  discharged,  and  it  is  the  duty  of  the  court  to 
require  that  they  be  properly  answered.6 

859.  Request  for  waives   special  verdict. — The  statute  evi- 
dently does  not  contemplate  that  there  shall  be  a  special  verdict  and 
special  findings  of  facts  in  the  same  action.     It  is  held  that,  where  a. 
party  requests  that  the  jury  be  required  to  return  special  findings  in 
answer  to  interrogatories,  he  thereby  waives  the  special  verdict,  al- 
though it  may  have  been  requested.*1 

860.  Each  answer  must  be  signed. — Each  answer  is  regarded 
as  a  separate  and  distinct  finding,  and  should  be  signed  by  the  fore- 
man.6   But  the  objection  that  they  are  not  signed  must  be  made  before 
the  jury  is  discharged  or  it  is  waived/ 

861.  When    answers   control  general  verdict. — Where  the 
special  findings  of  fact  and  the  general  verdict  are  so  inconsistent  that 
both  can  not  stand,  the  former  must  control,  otherwise  the  general  ver- 
dict must  stand.8 

(a)  Maxwell  v.  Uoyne,  36  Ind.  120;  128;   Morse  v.  Morse,  25  Ind.  15(5;  De 
Kowell  t\  Klein,  44  Ind.  290;  Guliek  lawter  v.   The   Sand    Creek    Ditching 
v.  Connelly,  42  Ind.  134.  Co.,  26  Ind.  407 :  Manning  v.  Gasharie, 

(b)  Guliek  v.  Connelly,  42  Tnd.  134.  27  Ind.  399;  The  Bellefontaine  R.  W. 

(c)  Noble    v.    Enos,     19    Ind.    72;  Co.?;.  Hunter,  33  Ind.  335;  Snydcr  v. 
Noakest-.  Morey,  30  Ind.  103;   McEl-  Robinson,   35  Ind.   311;    Campbell  v. 
fresh  v.  Guard,  32  Ind.  408;  Sage  v.  Dutch,  36  Ind.  504;    Wisler  v.  Holder- 
Brown,  34  Ind.  464;   Reeves  r.  Plough,  man,  40  Ind.  106;   Ridgeway  r.   Pear- 
41   Ind.  204;   Bowman  v.  Phillips,  47  inger,  42  Ind.  157;   Skillen  r.  Jones.  44 
Ind.  341;  Peters  v.  Lane,  55  Ind.  391.  Ind.   136;   Adams   v.    Cosby.   48   Ind. 

(d)  Nobler.  Enos,  19  Ind.  72.  153;    Nebeker   v.    Cutsinger,   48  Ind. 

(e)  Sage  v.  Brown,  34  Ind.  464.  436;   Wood  ford  v.  Begue.  53  Ind.  176; 

(f)  Vater  v.  Lewis,  36  Ind.  288.  Thompson  v.  The  Cincinnati,  etc.,  R. 

(g)  R.  S.  1881,  §  547;  The  Indian-  R.  Co.,  54  Ind.  197;   Graham  v.  Castor, 
apol is  and  St.  Louis  R.  R.  Co.  v.  Stout,  55  Ind.  559.;  Graham  r.  Graham.  55 
53  Ind.  143;  The  Board  of  Comm'rs,  Ind.  23;  Eckleman   v.  Miller.  57   Ind. 
ftc.,  v.  Kromer,  8  Ind.  446;   Wright  v.  88;   Alexander  r.  The   Northwestern 
Hughes,   13   Ind.   109;     Cromwell   v.  Christian    University,    57    Ind.    46tf  : 
Lowe,  14  Tnd.  234;   Horn  v.  Eberhart,  Mason  r.  Moulden,  58  Ind.  1  ;   Miller 
17  Ind.  !18;   Amidc.n  ?;.  Gaff,  24  Ind.  /-.  Wade,  58  Ind.  91  ;   Murray  r.  Phil 


XX.]  VERDICT.  561 

The  degree  of  inconsistency  that  must  exist  in  order  that  judgment 
should  be  rendered  on  the  special  findings,  notwithstanding  the  general 
verdict,  is  illustrated  by  the  numerous  cases  cited  in  the  foot  note. 
The  general  rule  is  variously  stated.  Thus,  it  is  said  : 

"  A  special  finding  overrides  the  general  verdict  only  when  both  can 
not  stand;  and  t'.iis  antagonism  must  be  apparent,  upon  the  face  of 
the  record,  before  the  court  can  be  successfully  called  upon  to  direct 
judgment  in  favor  of  the  party  against  whom  a  general  verdict  has 
been  rendered  by  the  jury  upon  their  oath. 

"It  is  the  duty  of  the  supreme  court  to  indulge  every  reasonable 
presumption  in  favor  of  the  correctness  of  the  general  verdict  which 
is  presumed  to  have  been  rendered  upon  the  substantial  merits  of  the 
matters  in  controversy.  It  is  also  the  duty  of  this  court  to  reconcile, 
if  possible,  the  general  verdict  with  the  answers  to  the  interrogatories ; 
for  it  is  settled  that  if  a  special  verdict  can,  by  any  hypothesis,  be 
reconciled  with  the  general  verdict  the  latter  will  control,  and  the 
court  will  not  render  judgment  against  the  party  in  whose  favor  the 
general  verdict  is  rendered. 

"  The  word  '  inconsistent,'  as  used  in  section  337  of  the  code,  does 
not  mean  that  the  special  findings  are  inconsistent  with  each  other, 
nor  does  it  mean  that  some  of  the  special  findings  are  inconsistent  with 
the  general  verdict,  but  it  means  either  that  taken  as  a  whole,  the 
special  findings  are  inconsistent  with  the  general  verdict,  or  that  the 
facts  found  in  one  or  more  of  the  answers  to  interrogatories  exclude 
every  conclusion  that  will  authorize  a  recovery  for  the  plaintiff."11 

Again:  "The  special  findings  override  the  general  verdict  only 
when  both  can  not  stand,  and  this  antagonism  must  be  apparent  upon 
the  face  of  the  record,  beyond  the  possibility  of  being  removed  by  any 
evidence  legitimately  admissible  under  the  issues,  before  the  court  can 
be  successfully  called  upon  to  direct  judgment  in  favor  of  the  party 
against  whom  a  general  verdict  has  been  rendered  by  a  jury  upon  their 
oath."' 

Where  the  evidence  is  not  in  the  record  on  appeal,  and  evidence 

lips,  59  Ind.56;  Smith  ?>.  Zent,  59  Ind.  Richardson,   72  Ind.  323;    Higgins  v. 

362;  Bowles  v.  Stout,  60  Ind.267;  The  Kendall,  73  Ind.  522;   McClure  /•.  Mo 

Detroit,  etc.,  R.  R.  Co.  r.  Barton,  61  Clure,  74  Ind.  108;  The  Lake  Shore, 

Ind.  293;  Brem merman    v.  Jennings,  etc.,  R.  R.  Co.  v.  McCormick,  74  Ind. 

61   Ind.  334;  Ohm  v.  Yung,   63  Ind.  440;  Vol.  3,  pp.  431,  447. 

432;  The  Grand  Rapids,  etc.,  R.  R.  Co.  (h)  The  Indianapolis  and  St.  Louis 

v.  Boyd,  65  Ind.  526;  Frazer  ?-.  Boss,  R.  R.  Co.  v.  Stout,  53  Ind.  143,  147; 

66  Ind.  1 ;   Rout  v.  Woods,  67  Ind.  319 ;  Husk.  Prac.  216,  and  cases  cited. 

Griffin  r.  Reis,  68  Ind.  9;  Medsker  v.  (i)  Amidon  v.  Gaff,  24  Ind.  128. 
36 


562  VERDICT.  [CHAP. 

might  properly  have  been  given  under  the  issues  that  would  have 
reconciled  the  inconsistency  between  the  general  verdict  and  the  special 
findings,  the  court  will  presume  that  such  evidence  was  given  in  the 
court  below. j 

And  where  the  answers  to  interrogatories  are  so  uncertain  that  their 
meaning  can  not  be  definitely  ascertained,  they  will  not  control  the 
general  verdict.k 

Every  reasonable  presumption  must  be  indulged  in  favor  of  the  gen- 
eral verdict.1  - 

862.  Can  only  be   returned  with   the   general  verdict. — 
Where  the  jury  fail  to  agree  upon  a  general  verdict,  answers  to  inter- 
rogatories can  not  be  returned,  nor  can  interrogatories  be  properly  sub- 
mitted except  upon  the  condition  that  a  general  verdict  is  found. 

To  make  the  special  findings  effective  for  any  purpose,  they  must  be 
returned  in  connection  with  a  general  verdict.™ 

And  where  the  interrogatories  are  asked,  absolutely,  and  not  upon 
the  condition  that  the  jury  find  a  general  verdict,  the  court  may  prop- 
erly refuse  to  submit  them  to  the  jury." 

863.  Can. not  be  withdrawn  from  the  jury. — When  the  court 
has  submitted  proper  interrogatories  to  the  jury,  the  parties  have  the 
right  to  have  them  answered,  and  they  can  not  be  withdrawn  without 
the  consent  of  the  parties.0 

In  the  case  cited  the  action  of  the  court  in  withdrawing  the  inter- 
rogatories was  attempted  to  be  justified  on  the  ground  that  they  were 
not  asked  on  the  condition  that  the  jury  agreed  upon  a  general  ver- 
dict. It  was  held  that  while  this  would  have  been  sufficient  ground 
for  refusing  to  submit  them,  in  the  first  instance,  it  could  not  justify 
their  subsequent  withdrawal. 

864.  Motion  for  judgment  on. — Where  it  is  believed  that  the 
special  findings  are  inconsistent  with  the  general  verdict,  the  question 
is  properly  presented  by  a  motion  for  judgment  on  the  special  find- 
ings notwithstanding  the  general  verdict.     The  question  can  not  be 

( j)  Graham  v.  Graham,  55  Ind.  23.  Butsch,  32  Ind.338  ;  Eudaly  v.  Eudaly, 

(k)  Comer  v.   Himes,   49  Ind.  482;  37  Ind.  440;  Todd  v.  Fenton,  66  Ind. 

Carpenter  v.  Galloway,  73  Ind.  418.  25. 

(I)  McCallister   v.    Mount,    73   Ind.  (n)  Schenck  v.  Butsch,  32  Ind.  338; 

559.  Killian  v.  Eigenmann,  57  Ind.  480. 

(m)  Bird   v.   Lanius,    7    Ind.   615;  (o)  The  Otter  Creek  Block  Coal  Co. 

Morse  v.  Morse,  25  Ind.  156;  Manning  v.  Raney,  34  Ind.  329. 
v.  Gasharie,  27  Ind.  339;  Schenck  r. 


XX.]  VERDICT.  563 

raised  in  the  supreme  court  for  the  first  time,  but  must  be  raised  by 
the  proper  motion  in  the  court  below.? 

Such  a  motion  does  not  waive  a  motion  for  a  new  trial. q 
The  subject  of  judgments  on  the  special  findings  is  more  fully  con- 
sidered in  the  chapter  on  judgments. 

865.  When  treated  as  a  special  verdict. — It  is  well  settled 
by  authority  that  the  special  findings  and  the  general  verdict  must  be 
returned  together.  But  it  has  also  been  held,  in  some  cases,  that 
where  the  interrogatories  are  so  framed,  and  the  answers  thereto  so 
made  as  to  amount  to  a  finding  upon  all  of  the  facts,  they  may  be  re- 
ceived alone  and  treated  as  a  special  verdict.8 

But  in  order  that  they  may  be  so  construed  it  is  held  that  they  must 
cover  and  embrace  all  the  matters  in  issue  between  the  parties.1 

(p)  Tritlipo  v.  Lacy,  55  Ind.  287;  K.  Co.,  31  Ind.  283;  The  Toledo,  Wa- 

Horn  v.  Eberhart,  17  Ind.  118;  Stock-  bash,  etc.,  K.  K.  Co.  v.  Hammond,  33 

ton  v.  Stockton,  40  Ind.  225 ;  Brannon  Ind.  379;  Pea  v.  Pea,  35  Ind.  387; 

v.  May,  42  Ind.  92 ;  Busk.  Prao.  217.  Crassen  v.  Swoveland,  22  Ind.  427. 

(q)  Brannon  v.  May,  42  Ind.  92.  (t)  Kealing  v.  Voss,   61    Ind.  466; 

(s)  Paine  v.  The  Lake  Erie,  etc.,  R.  Pea  v.  Pea,  35  Ind.  387. 


564 


NEW   TRIAL — VENIRE   DE   NOVO. 


[CHAT. 


CHAPTER  XXI. 


NEW  TRIAL— VENIRE  DE  NOVO. 


SECTION. 

NEW  TRIAL 

866.  The  statute. 

THE   MOTION. 

867.  Must  be  in  writing. 

868.  When  must  be  filed. 

869.  Must  point  out  the   errors  com- 

plained of  with  reasonable  cer- 
tainty. 

870.  Truth  of  causes   must  be  shown 

by  bill  of  exceptions. 

871.  When  must  be  verified. 

872.  Joint  motion. 

873.  In  attachment  proceedings. 

874.  Is  part  of  the  record. 

875.  Successive  motions. 

876.  Must  be  granted  as  to  the  whole 

case. 

CAUSES   FOR  NEW   TRIAL. 

1.  Irregularity  in  the  proceedings  of 
the  court,  jury,  or  prevailing 
party,  or  any  order  of  court  or 
abuse  of  discretion  by  which  the 
party  was  prevented  from  having 
a  fair  trial. 

877.  What  embraced  in  this  specifica- 

tion. 

878.  Irregularity   in   the   proceedings 

of  the  court. 

879.  Continuance. 

880.  Change  of  venue. 

881.  Depositions. 

882.  Interrogatories  to  party. 

883.  Dismissal  of  appeal. 

884.  Orders  of  court;  abuse  of  discre- 

tion. 

b8G.  Irregularity  of  the  jury    or  pro- 
vailing  party. 


SECTION. 

2.  Misconduct  of  the  jury  or  prevailing 

party. 

886.  Of  the  jury  must   be   gross  and 

injurious. 

887.  Drinking  intoxicating  liquors. 

888.  Communicating    with    other  per- 

sons. 

889.  Presence  in  the  jury  room  of  of- 

ficer in  charge. 

890.  Separation  of  the  jury. 

891.  Viewing  the  premises. 

892.  Taking  notes  of  the  evidence. 

893.  Taking  out  papers. 

894.  Furnishing  law  to  the  jury. 

895.  Compromise  verdict. 

896.  Communications    between  •  court 

and  jury. 

897.  Misconduct  of  prevailing  party. 

3.  Accident  or  surprise  which  ordinary 

prudence  could  not  have  guarded 
against. 

898.  How  assigned. 

899.  At  the  evidence  of    the  adverse 

party. 

900.  At  the  testimony  of  his  own  wit- 

nesses. 

901.  Other  grounds  of  surprise. 

902.  Diligence  must  have  been  used  to 

avoid  surprise. 

903.  Must  have  caused  injury. 

4.  Excessive  damages. 

904.  Applies  to  actions  for  tort. 

905.  Can  not  be  assigned  as  error. 

906.  Damages  must  be  grossly  exces- 

sive. • 

9J7.  Omission  to  assess  nominal  dam- 


908.  Remittitur. 


XXI.] 


NEW   TRIAL — VENIRE    DE   NOVO. 


565 


5.  Error    in    the    assessment    of    the, 

amount  of   recovery,  whether  too 
iarge  or  too  small. 

909.  What  included  within  this  specifi- 
cation. 

910.  When  cause  will  be  reversed  on 

ground   that   assessment   is   too 
large. 

911.  Finding   for  more   than    amount 

claimed  in  complaint. 

912.  Where  there  is  a  demurrer  to  the 

evidence. 

913.  Amount  of  recovery  too  small. 

6.  That  the  verdict  is  not  sustained  by 

sufficient  evidence  or  is  contrary  to 
law. 

914.  Not   sustained   by  sufficient   evi- 

dence. 

915.  Rule  in  the  supreme  court. 

916.  Verdict  contrary  to  law. 

917.  All  of  the  evidence  must  be  in  the 

record. 

7.  N  ewly-discoveved  evidence. 

918.  What  must  be  shown  under  this 

specification. 

919.  That  the  evidence  has  been  dis- 

covered since  the  trial. 

920.  Diligence  used  to  procure  the  evi- 

dence. 

921.  Evidence  must  be  material. 

922.  Cumulative  evidence. 

923.  Impeaching  evidence. 

924.  Evidence  must  probably  produce 

a  different  result. 

925.  Affidavits   of  party  and  witness 

necessary. 

926.  Evidence  must  be  in  the  record. 

8.   Error  of  *law  occurring  at  the  trial. 
'.rJ7.  Generally. 

928.  Causes  enumerated. 

929.  Admission   or   exclusion   of    evi- 

dence. 

9oO.  Givmg   or    refusing    to    give    in- 
structions. 

931.  Question  of  law  reserved. 


ERRORS    NOT    GROUND    FOR  NEW  TRIAL. 

932.  Enumerated. 

HOW  MOTION  FOR  NEW  TRIAL  WAIVED. 

933.  By  moving  in  arrest  of  judgment. 

934.  By  failing  to  except  at  the  time. 

935.  Not  waived   by  motion  for  a  ve- 

ntre  de  novo. 

938.  Nor  by  motion  for  judgment  on 
special  findings. 

ERROR    IN   GRANTING   OR   OVERRULING 
THK    MOTION. 

937.  New  trial  grunted. 

938.  New  trial  refused. 

939.  Exception   must  be  taken  at  the 

time. 

940.  When  appeal  taken  from  ruling 

on  the  motion. 

941.  Default;  can  be  no  new  trial. 

942.  Effect  of  consent  of  parties. 

TERMS  OF  GRANTING  NEW  TRIAL. 

943.  Costs. 

944.  Can  not  be  granted  on  condition. 

945.  Costs  can  not  be  recovered  back. 

946.  Effect  of  granting  new  trial. 

AFFIDAV/TS    IN    SUPPORT    OF    THE    MO- 
TION. 

947.  Proof  how  made. 

948.  Witness  compelled  to  make  affi- 

davit. • 

949.  Juror's  affidavit. 

950.  Determined  by  the  weight  of  the 

evidence. 

NUMBER  OF  NEW  TRIALS. 

951.  Unlimited. 

COMPLAINT  FOR  NEW  TRIAL. 

952.  The  statute. 

•  953.  When  must  be  filed. 

954.  The  pleadings. 

955.  The  complaint. 

956.  The  parties. 

957.  Demurrer. 

958.  The  trial. 
!'•">!».    Appeal. 


566  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

NEW  TRIAL  AS  OF  RIGHT.  969.  Default;  can  be  no  new  trial  as  of 

960.  The  statute.  right. 

961.  In  what  causes  may  be  granted. 

962.  The  motion.  »  VENIRE  DE  NOVO. 

963.  Undertaking  must  be  given  and  970.  Defective  verdict. 

new   trial   granted  within   one    971.  Failure  to  find  the  whole  issue, 

year.  972.  Finding  the  evidence  or  conclu- 

964.  The  undertaking.  sions  of  law. 

965.  The  notice.  973.  Imperfect  answers  to  special  in- 

966.  The  evidence.  terrogatories. 

967.  Appeal.  974.  Motion    must     be    made     before 

968.  Effect  of  order  granting.  judgment. 

975.  Appeal. 

NEW   TRIAL. 

866.  The  statute. — "  Sec.  559.  A  new  trial  may  be  granted  in 
the  following  cases : 

"  First.  Irregularity  in  the  proceedings  of  the  court,  jury,  or  pre- 
vailing party,  or  any  order  of  court,  or  abuse  of  discretion  by  which 
the  party  was  prevented  from  having  a  fair  trial. 

"  Second.  Misconduct  of  the  jury  or  prevailing  party. 

"  Third.  Accident  or  surprise  which  ordinary  prudence  could  not 
have  guarded  against. 

"  Fourth.  Excessive  damages. 

"  Fifth.  Error  in  the  assessment  of  the  amount  of  recovery,  whether 
too  large  or  too  small,  where  the  action  is  upon  contract  or  for  the  in- 
jury or  detention  of  property. 

"  Sixth.  That  the  verdict  or  decision  is  not  sustained  by  sufficient 
evidence  or  is  contrary  to  law. 

"  Seventh.  Newly  discovered  evidence  material  for  the  party  apply- 
ing, which  he  could  not,  with  reasonable  diligence,  have  discovered 
and  produced  at  the  trial. 

"  Eighth.  Error  of  law  occurring  at  the  trial  and  excepted  to  by  the 
party  making  the  application.  And  the  court,  in  granting  new  trials, 
may  allow  the  same  at  the  costs  of  the  party  applying  therefor,  or  on 
the  costs  abiding  the  event  of  the  suit,  or  a  portion  of  the  costs,  as 
the  justice  and  equity  of  the  case  may  require,  taking  into  considera- 
tion the  causes  which  may  make  such  new  trial  necessary."8 

THE   MOTION. 

867.  Must  be  in  writing. — "The  application  must  be    by  mo- 
tion upon  written  cause  filed  at  the  time  of  making  the  motion."  b 

(a)  R.  S.  1881,  \  559;    Vol.  3,  p.  432,     Erwin,  6  Ind.  494;  The  Madison,  etc., 
434.  R.  R.-CO.  v.  The  Trustees  of  Franklin 

(b)  R.  S.  1881,  ?  562;   Addleman  v. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVU.  567 

It  has  been  held  that  a  motion  for  a  new  trial,  as  of  right,  need  not 
be  in  writing.0 

The  statute  seems  to  apply  to  the  reasons  for  a  new  trial  and  not  to 
the  motion,  but  the  reasons  must  constitute  the  most  material  part  of 
the  motion ;  and  although  some  of  the  decided  cases  speak  of  the  rea- 
sons as  distinguished  therefrom,  as  the  statute  requires  the  motion  to 
be  made  and  the  reasons  to  be  filed  at  the  same  time,  and  as  the  mo- 
tion amounts  to  nothing  without  the  reasons  they  should  both  be  in 
writing  and  treated  as  constituting  the  motion  for  a  new  trial. (1) 

Where  the  cause  has  been  tried  by  the  court,  and  a  finding  ren- 
dered, the  court  can  not,  upon  an  oral  motion  for  a  new  trial,  set 
aside  the  finding  and  render  a  finding  for  the  opposite  party.d 

868.  When  must  be  filed.— The  code  of  1852  required  that  the 
written  motion  for  a  new  trial  should  be  filed  during  the  term  at  which 
the  verdict  or  decision  was  rendered.6 

Under  this  statute  it  was  held,  in^,  number  of  cases,  that  the  mo- 
tion must  be  filed  during  the  term,  and  could  not  be  made  afterwards 
except  for  causes  discovered  after  the  term.f 

The  present  statute  provides  that  "  if  the  verdict  or  decision  be  ren- 
dered on  the  last  day  of  the  session  of  any  court,  or  on  the  last  day  of 
any  term,  then  on  the  first  day  of  the  next  term  of  such  court, 
whether  general,  special,  or  adjourned,"  the  motion  may  be  filed.- 

This  amendment  only.extends  the  time  where  the  verdict  or  decision 
is  rendered  on  the  last  day  of  the  session  of  court,  if  the  court  ad- 
journs before  the  time  fixed  by  law,  or  on  the  last  day  of  the  term, 
and  in  such  case  the  motion  must  be  made  on  the  first  day  of  the  next 
term.  By  the  express  terms  of  the  statute,  if  a  special  or  adjourned 
term  is  held  before  the  regular  term,  the  motion  must  be  filed  at  such 

Tp.,  8  Ind.  528;  Nutter  v.  The  Stat$  (d)  Wright  v.  Hawkins,  36  Ind.  264. 

9  Ind.  178;   Howes  v.  Halliday,  10  Ind.  (e)  2  R.  S.  1876,  p.  Ibo,  \  354;  Vol. 

839;    Kirby  v.   Cannon,   9    Ind    371;  3,  p.  434. 

Thompson  v.  Shaefer,  9  Ind.  500:  La-  (f)  McNiel   v.   Farneman,  37  Ind. 

gro,  etc.,  Plank  R.  Co.  v.  Eristou,  10  203;  Greenup  v.  Crooks,  50  Ind.  410; 

Ind.  342;  The  New  Albany,  etc.,  R.  R.  Hinkle   v.    Margerum,    50    Ind.   240; 

Co.  v.  Collins,  12  Ind.  626;  Stevens  v.  Krutz  v.  Craig,  53  Ind.  661 ;  Ricketts 

Nevitt,  15  Ind.  224;  Hubbell  v.  Skiles,  v.  Dorrell,  55  Ind.  470;   Myers  v.  Jnr- 

16   Ind.  138;    Zimmerman  v.   March-  boe,  56  Ind.  57;  Davis  v.  Binford,  58 

land,  23  Ind.  474;  Thayer  r.  Hedges,  Ind.   457;    The    Pennsylvania   Co.  v. 

23  Ind.  141;  Whaley  v.  Gleason,  40  Sedwick,    59   Ind.  336;    Coggswell   v. 

Ind  405;  Krutz  v.  Craig,  53  Ind.  561;  The  State,  65  Ind.  1  ;  Smith  v.  Little, 

Harris  v.  Boone.  69  Ind.  300.  67   Ind.  549;   Hannah   v.   Dorrell,   73 

(c!  Zimmerman    v.    Marchland,    23  Ind.  465 ;  Higgins  v.  Kendall,  73  Ind. 

I,,d.  474.  622;  Cutsinger  v.  Nebeker,  58  Ind.  401. 

(1)  Vol.  3,  p.  432.  (g)  R.  S.  1881,  §  561. 


568  NEW    TRIAL — VENIRE   DE   NOVO.  [CHAP. 

term.  But  the  statute  must  be  understood  to  apply  to  a  term  of  court 
held  by  the  judge  before  whom  the  cause  was  tried  and  in  which  the 
cause  is  set  down  for  hearing,  and  not  to  a  term  fixed  for  the  trial  of 
certain  causes,  of  which  it  is  not  one. 

The  court  has  no  power  to  extend  the  time  for  filing  the  motion 
beyond  the  time  fixed  by  the  statute.11 

But  the  opposite  party  must  object  to  the  extension  at  the  time,  or 
the  requirement  of  the  statute  is  waived. 

R  is  too  late  to  object  when  the  motion  is  filed  at  the  next  term.' 

Where  reasons  are  filed  during  the  term,  other  and  different  reasons 
can  not  be  filed  after  the  term.J 

Time  may  be  extended  by  consent.15 

The  statute  applies  to  the  term  at  which  the  verdict  or  decision  is 
rendered,  and  not  to  the  time  of  the  trial ;  therefore,  if  the  cause  is 
tried  at  one  term,  and  decided  by  the  court  at  a  subsequent  one,  the 
motion  may  be  filed  at  any  time  during  the  latter  term.1 

The  word  "decision,"  as  useA  in  the  statute,  applies  to  the  finding 
of  facts  in  a  cause  tried  by  the  court.™ 

The  motion  maybe  made  after  judgment."  It  was  otherwise  prior 
to  the  code.0 

869.  Must  point  out  the  errors  complained  of  with  reason- 
able certainty. — The  motion  for  a  new  trial  must  state  the  causes 
therefor  with  reasonable  certain ty.p  It  is  not  sufficient  to  use  the 
general  terms  of  the  statute.  The  causes  must  be  specifically  set  forth.'1 
Thus  a  cause  assigned  :  "  Because  of  error  of  law  occurring  at  the 
trial,  and  excepted  to  at  the  time,"  is  too  general/ 

So  of  the  reason  :  "  Surprise  at  the  trial,  which  ordinary  prudence 
could  not  have  guarded  against."9 

(h)  Krutz  v.  Craig,  53  Ind.  561,  570.  •  (p)  Robinson  ».  Hadley,  14  Ind.  417 ; 

(i)  Wilson  v.  Vance,  55  Ind.  394;  Shirk  v.  Cartright,  '29  Ind.  406 ;  Marsh 

McOsker  v.  Barrel!,  55  Ind.  425;  My-  v.  Terrell,  63  Ind.  363. 

ers  v.  Jarboe,   56  Ind.  57;  The  Penn-  (q)  Ham  v.  Carroll,  17  Ind.  442. 

sylvania  Co.  v.  Sedwick,  59  Ind.  336;  (r)   Barnard  v.  Graham,  14  Ind.  322; 

Northcuttr.  Buckles,  60  Ind.  577.  Oiler  v.  Bodkey,  17  Ind.  600;  Medler 

(j)  Myers  v.  Jarboe,  56  Ind.  57.  a.  Hiatt,  14  Ind.  405;  The  Pittsburgh, 

(k)  Smith  v.  Little,  67  Ind.  549.  etc.,  R.  R.  Co.  v.  Hennigh,  39  Ind.  509; 

(1)  Kendell  v.  Judah.  63  Ind.  291.  Snodgrass  v.  Hunt,  15  Ind.  274;  Phelps 

(m)  Wilson  r.  Vance,  55  Ind.  394.  v.  Tilton,  17  Ind.  423;  Ward  v.  Pat- 

(n)  Hinkle  v.  Margerum,  50  Ind.  rick,  41  Ind.  438;  Scoville  v.  Chap- 

240;  Smith  v.  Thornburg,  7  Ind.  144;  man,  17  Ind.  470;   Dutch  v.  Anderson, 

Beals  v.  Beals,  20  Ind.  163 ;   Willis  v.  75  Ind.  35. 

The  State,  62  Ind.  391.  (s)  Snodgrass  v.  Hunt,  15  Ind.  274- 
(o)  Smith  v.  Thornburg.  7  Ind.  144. 


XXI.]  NEW   TRIAL — VENIRE   DE    NOVO.  569 

Or  "  irregularity  in  the  proceedings  of  the  court."j  Or  "error  of 
law  occurring  at  the  trial."  k 

Instructions.  As  applied  to  the  instructions,  the  assignment,  "  be- 
cause the  court  erred  in  charging  the  law  of  the  case,"  is  too  general.1 
So  "that  the  court  misdirected  the  jury.'""  Or  "  the  court,  erred  in 
refusing  to  give  charges  moved  by  the  defendant."" 

The  particular  instruction  complained  of  must  be  pointed  out.0 

But  it  has  been  held  that  it  is  a  sufficient  reason  that  "  error  of  law 
occurred  at  the  trial  of  the  cause,  which  was  excepted  to  at  the  time  by 
the  party,  in  this :  that  the  court,  in  giving  instructions  to  the  jury, 
gave  instructions  contrary  to  law,"  where  all  of  the  instructions  have 
been  excepted  to.p  So  of  the  cause,  "  the  court  erred  in  instructions 
given  to  the  jury"  is  sufficiently  specific  where  all  of  the  instructions 
have  been  excepted  to.q  This  is  upon  the  ground  that  the  exceptions 
and  the  reason  assigned,  taken  together,  go  to  all  of  the  instructions. 
By  these  later  cases,  those  holding  the  general  assignment  of  a  cause 
for  a  new  trial  insufficient,  as  applied  to  the  instructions,  are  in  effect 
overruled/ 

But  to  make  the  assignment  sufficient  under  this  rule  it  must  go  to 
the  whole  of  the  instructions,  and  will  be  held  bad  if  applied  to  only 
a  part,  without  designating  what  part." 

And  when  the  rule  is  thus  construed  there  are  other  and  later  cases 
that  are  clearly  in  conflict  with  the  decisions  holding  such  a  general 
cause  for  a  new  trial  to  be  sufficient.1 

But  in  a  still  later  case  the  old  rule  is  again  reiterated,  coupled  with 
the  statement  that  the  cases  above  cited  holding  the  general  assigment 
of  the  causes  to  be  sufficient  have  since  been  followed." 

(j)  Phelps  v.  Tilton,   17   Ind.  423;  (r)   Bartholomew   v.    Langsdale,   35 

Scoville  v.  Chapman,  17  Ind.  470.  Ind.  278. 

(k)  Ferguson   r.    Ramsey.    41    Ind.  (s)  Streigbt   v.    Bell,   37    Ind.  550; 

511;  ilarley  v.  Noblett,  42  Ind.  85;  Waggoner  v. Listen; 37  Ind.  357;  Suth- 

Fisher  v.  Hamilton,  48  Ind.  239;   Ma-  erland  i-  Venard,  34  Ind.  390. 

son  v.  Moulden,  58  Ind.  1.  (t)  Waggoner  v.  Listen,  37  Ind.  357; 

(1)  Robinson  v.  Hadley,  14  Ind.  417 ;  Wright  v.  Potter,  38  Ind.  61  ;  Alley  v. 

Home  v.  Williams,  23  Ind.  37.  Gavin,  40  Ind.  446;  Reeves  v.  Plough, 

(m)  Brooker  v.  Weber,  41  Ind.  426.  41    Ind.   204;  Marley   v.   Noblett,   42 

Stone  r.  The  State,  42  Ind.  418.  Ind.  85;    Holding   v.  Smith,  4'J   Ind. 

(n)  Home  v.  Williams,  23  Ind.  37.  536;  Rogers  v.  Rogers,  46  Ind.  1  ;  Ad- 

(o)   Home  r.  Williams,  23  Ind.  37.  ams  v.  Holmes,  48  Ind.  299;  Grant  v. 

(p)  Dawson  v.  Coffmnn,  28  Ind.  220.  Westfall.  57  Ind.  121 ;  Vaughn  v.  Fer- 

(q)   Bartholomew   v.   Langsdale,  35  rail,  57  Ind.  182;    Nofsinger  r.  Rey- 

Ind.  278.  nolds,  52  Ind.  218. 

(u)  Irwin  v.  Smith,  72  Ind.  482,  487. 


570  NEW    TRIAL — VENIRE   DE    NOVO.  [CHAP. 

Evidence.  Where  the  error  relied  upon  is  the  admission  or  exclusion 
of  evidence,  the  particular  evidence  must  be  designated  in  the  motion. v 

The  evidence  need  not  be  set  out  in  full.  It  is  sufficient  if  it  is  so 
described  as  to  show  with  reasonable  certainty  that  part  of  the  evi- 
dence complained  of.w 

Thus  it  has  been  held  that,  where  the  cause  was  "  for  refusing  to 
allow  the  defendants  to  introduce  evidence  of  the  good  character  of 
their  witnesses,"  it  was  sufficiently  definite. x  But  it  is  not  sufficient 
to  designate  it  as  the  evidence  of  a  particular  witness.-" 

The  cause  assigned  must  be  sufficient  to  direct  the  attention  of  the 
lower  court  to  the  particular  evidence  complained  of.z 

Where  the  cause  assigned  was  that  a  note  differing  from  the  one  de- 
scribed in  the  mortgage  sued  on  was  admitted  in  evidence,  it  was  held 
the  motion  should  have  pointed  out  the  difference  that  existed.'1 

Verdict  It  has  been  held  sufficient,  as  a  cause  for  a  new  trial,  "  that 
the  verdict  is  contrary  to  the  evidence,"  it  being  equivalent  to  the  stat- 
utory cause,  "  that  the  verdict  is  not  sustained  by  sufficient  evidence."1' 
So,  to  use  the  language  of  the  statute,  that  "  the  verdict  is  contrary  to 
law."c 

Irregularity  of  jury  or  party.  In  assigning  the  reasons  under  this 
clause  of  the  statute  it  is  not  sufficient  to  use  the  general  language  of 
the  statute.  The  particular  act  constituting  the  irregularity  com- 
plained of  must  be  pointed  out.d 

Bill  of  exceptions  can  not  aid  the  uncertainty.  While  the  bill  of  excep- 
tions is  necessary  to  make  the  motion  for  a  new  trial  effective,  it  can 
not  supply  an  omission  therein.  Therefore,  a  motion  for  a  new  trial 
that  does  not  contain  the  statutory  requirements  can  not  be  aided  by  a 
bill  of  exceptions  not  yet  filed.6 

(v)  Cheek  r.  The  State,  37  Ind.  533  ;  (a)  Dorsch  v.  Rosenthall,  39  Ind.  209. 

"W  right  v.  Potter,  38  Ind.  61 ;   Dorsch  (b)  Collins  r.  Maghee,  32  Ind.  268. 

v.  Rosenthall,  39  Ind.   209;    Eden  v.  (c)  Marsh  v.  Terrell,  C3  Ind.  363. 

Lingenfelter,  39  Ind.  19;  Cass  ?;.  Krim-  (d)  Marley  v.  Nob.lett,  42  Ind.  85; 

bill,  39  Ind.   357  ;  Call  v.  Byram,  39  Musselman  v.  Musselman,  44  Ind.  106. 

Ind.  499;   Mook'.ar  v.  Lewis,  40  Ind.  1 ;  (e)  Sim  v.  Hurst,  44  Ind.  579  ;  Shore 

De  Armond  v.  Glasscock,  40  Ind.  418;  v.   Taylor,   46    Ind.    345;    Murphy   v. 

Hull  v.  Balfe,  41  Ind.  221;  Bayless  v.  Wilson,  46  Ind.  537;  Scott  v.  The  In- 

Glenn,  72  Ind.  5.  dianapolis  Wagon  Works,  48  Ind.  75; 

(w)  Ball  v.  Balfe,  41  Ind.  221.  Long  r.  Z.  ok.  48  Ind.  12-5;  Noble  v. 

(x)  Clarke  v.  B..nd,  29  Ind.  555.  Dickson,  48  Ind.  171  ;   White  v.  Kice, 

(y)  The   Jeffersonville,    etc.,    R.   R.  48  Ind.  225;  Cooper  r.  Ham,  49  Ind. 

Co.  v.  Riley,  39  Ind.  568.  393;   Cobble  v.  Tomlinson,  50  Ind.  550 

(•/.}  Sherlock  r.  Ailing,  44  Ind.  184; 
Meyer  v.  Bohlfing,  44  Ind.  238. 


XXI.]  NEW   TRIAL — VENIRE    DE   NOVO.  571 

Assignment  of  error.  Xor  can  aii  assignment  of  error  enlarge  or  aid 
the  uncertainty  of  the  motion/ 

870.  Truth  of  causes  must  be  shown  by  bill  of  exceptions. 
— A  motion  for  a  new  trial  can  only  be  made  effective  by  a  bill  of  ex- 
ceptions showing  that  the  causes  assigned  therein  are  true. 

The  recitals  in  the  motion  will  not  be  taken  to  be  true  in  the  absence 
of  a  bill  of  exceptions.8 

But  where  the  question  arises  upon  the  instructions  or  other  matter 
which  may  be  made  part  of  the  record  by  order  of  the  court,  or  ex- 
ceptions thereto  without  a  bill  of  exceptions,  it  is  sufficient  if  it  appear 
from  the  record  that  such  order  was  made  or  exception  taken,  as  re- 
quired by  statute.11 

871.  "When  must  be  verified. — As  a  rule,  a  motion  fora  new 
trial  need  not  be  verified  or  supported  by  affidavit.     But  when   the 
second,  third,  or  seventh  causes  are  assigned,  they  must  be  supported 
by  affidavit  showing  their  truth.' 

It  is  held  that  a  motion  for  a  new  trial  under  the  first  specification 
of  the  statute  need  not  be  supported  by  affidavit.™ 

872.  Joint  motion. — Where  the  same  questions  arise  on  the  mo- 
tion for  a  new  trial  as  to  all  of  the  parties  making  the  application,  the 
motion  may  properly  be  joint.     But  if  there  is  any  difference  in  their 
rights  that  will  be  likely  to  affect  the  question  of  the  granting  of  a  new 
trial,  each  should  file  a  separate  motion.     If  a  jwint  motion  is  nm< li- 
no question  is  raised  as  to  the  right  of  one  of  the  parties  to  a  new  trial, 

(f  )  Dobson     v.    The     Duck     Pond  State,  65  Ind.  51;  McDonald  v.  The 

Ditching    Association,   42    Ind.    312;  State,  74  Ind.  214;  Burnett  v.  Overtoil, 

Douglass  v.  Blankenship,  50  Ind.  160.  67  Ind.  557;    Bates   v.  The  State,  72 

(c)  The   Indianapolis   Mfg.   Co.   v.  Ind.  434;    Paulman  v.  Claycomh,  75 

First  National  Bank  of  Indianapolis,  Ind.  64. 

33  Ind.  302;  McSheeley  v.  Bentley,  31  (h)  Emmons   v.   Newman,   38  Ind. 

Ind.   235;    Emmons  v.   Newman,    38  372;  R.  S.  1881,  g§  535,  629,  650;  ante, 

Ind.  372;   Blackwell  v.  Acton,  38  Ind.  §  796;   Bates  v.  The  State,  72  Ind.  434; 

425;  Taulby  v.  The  State,  38  Ind.  437;  McDonald  v.  The  State,  74  Ind.  214; 

Ski'.len  v.  Skillen,  41  Ind.  122;   Wiler  Hughes  v.  The  State,  65  Ind.  39;  Stott 

v.  Manly,  51  Ind.  169;  Bishop  v.  Welch,  v.  Smith,  70  Ind.  298. 

54  Ind.  527;  Vawter  v.  Gilliland,  55  (i)  R.   S.    1881,    §    562;    Urban    n. 

Ind.  278;   Stearns  v.  Irwin,   62  Ind.  Kraigg,  21  Ind.  174 ;  Temple  v.  Lasher, 

658;  Hughes  r.  The  State,  65  Ind.  39;  39  Ind.  203;    Bouslog  v.   Garrett,  39 

Johnson  v.  The   State,    65  Ind.   269;  Ind.  338. 

Berlin  v.  Oglesbee.  65  Ind.  308;   Hyatt  (m)  Jones  v.  Johnson,  61  Ind.  257; 

v.  Clements,  65  Ind.  12 ;  Fisher  v.  The  R.  S.  1881,  §  559;  ante,  \  866. 


572  NEW   TRIAL — VENIRE   I>E   NOVO.  [dlAP. 

therefore,  if  the  motion  is  not  well  taken  as  to  either  of  the  parties,  it 
must  be  overruled  as  to  all,  although  one,  if  the  application,  were 
made  for  him  separately,  would  be  entitled  to  a  new  trial." 

But  it  has  been  held  that,  where  there  is  a  joint  verdict  against 
several  defendants,  and  the  cause  assigned  is  that  the  verdict  is  not 
sustained  by  sufficient  evidence,  the  motion  is  sufficiently  specific,  and 
the  verdict  should  be  set  aside  as  to  all  of  the  parties  where  the  evi- 
dence does  not  sustain  it  as  to  a  part  of  them.0 

The  case  was  one  where  the  parties  were  charged  in  the  complaint 
as  joint  contractors,  and  the  evidence  established  a  several  liability  as 
to  two  of  the  defendants,  and  that  the  other  defendant  was  not  liable 
at  all.  It  was  held  that,  under  this  state  of  the  pleadings,  the  joint 
verdict  could  not  be  upheld  as  to  any  of  the  defendants. 

873.  In  attachment  proceedings. — In  attachment  proceedings 
the  manner  of  applying  for  a  new  trial  may  be  different  from  that  of 
other  cases.    Issues  may  be  formed  upon  the  questions  of  fact  presented 
by  the  affidavit  in  attachment  as  well  as  upon  the  complaint. p 

There  may  also  be  a  motion  for  a  new  trial,  both  as  to  the  cause  of 
action  set  up  in  the  complaint  and  as  to  the  questions  presented  by  the 
affidavit  in  attachment.  It  is  not  necessary,  however,  that  there  should 
be  two  motions  for  a  new  trial.  The  motion  may  be  as  to  the  issues 
formed  in  the  attachment  proceedings  and  those  formed  in  the  original 
action,  and  the  motion  may  be  granted  as  to  the  attachment  pro- 
ceeding and  denied  as  to  the  original  cause  of  action. q 

While  one  motion-  is  sufficient,  it  must  so  assign  the  reasons  for  a 
new  trial  as  to  make  them  applicable  to  both  branches  of  the  case. 
When, the  motion  is  thus  framed  it  will  be  treated  as  several.  Thus  it 
has  been  held  that  a  motion,  "  as  well  upon  the  attachment  proceed- 
ings as  of  those  formed  upon  the  note  and  account,  and  all  of  them," 
should  be  treated  as  a  several  motion  upon  the  issues  on  the  complaint 
and  affidavit/ 

874.  Is  part  of  the  record. — A  motion  for  a  new  trial,  and  the 
causes  assigned  therefor,   become  a  part  of  the  record,  when  filed, 
without  a  bill  of  exceptions.8 

(n)  The  First  Nat.  Bk.  of  Cambridge  Excelsior  Fork  Co.  v.  Lukens,  38  Ind. 

City  v.  Colter.  61  Ind.  153;  Kendell  v.  438. 

Judah,  63  Ind.  291.  (q)   Parsons  v.  Stockbridge,  42  Ind. 

(o)  Gmham  v.  Henderson,    35  Ind.  121. 

195.  (r)  Parsons  v.  Stockbridge,  42  Ind. 

(p)  Foster  r.  Dryfus,    16  Ind.  158;  121. 

Maple  v    Burnside,  22  Ind.  139;  The  (s)   Martin  i\  Harrison,  50  Ind.  270; 


XXI.]  NEW    TRIAL — VENIRE   DE   NOVO.  573 

They  may  be  brought  into  the  record  by  a  bill  of  exceptions,  but  it 
is  unnecessary.1 

The  rule  that  the  motion  and  reasons  are  part  of  the  record  does  not 
extend  to  affidavits  in  support  of  the  reasons  assigned.  They  can  only 
be  made  part  of  the  record  by  a  bill  of  exceptions  or  an  order  of 
court." 

875.  Successive  motions. — A  second  motion  for  a  new  trial  for 
the  same  cause  should  not  be  allowed.     But  it  has  been  held  that  a 
second  or  even  a  third  motion  may  be  entertained  in  the  discretion  of 
the  court  where  it  is  shown  that  due  diligence  was  used,  and  the  cause 
or  causes  assigned  therefor  were  not  discovered  until  after  the  original 
application  was  determined." 

876.  Must  be  granted  as  to  the  whole  case. — A  new  trial 
must,  in  ordinary  cases,  be  granted  as  to  the  whole  case  or  overruled." 

It  has  been  shown  that  in  attachment  proceedings  the  motion  may 
be  sustained  as  to  the  issues  on  the  affidavit  for  attachment,  and  over- 
ruled as  to  the  main  action. x 

CAUSES   FOR   NEW  TRIAL. 

/ 

1.  IRREGULARITY  IN  THE  PROCEEDINGS  OF  THE  COURT,  JURY,  OR  PRE- 
VAILING PARTY,  OR  ANY  ORDER  OF  COURT,  OR  ABUSE  OF  DIS- 
CRETION, BY  WHICH  THE  PARTY  WAS  PREVENTED  FROM  HAVING 
A  FAIR  TRIAL. 

877.  What  embraced  in  this  cause. — The  first  clause  of  the 
statute  embraces  several  distinct  causes  for  a  new  trial : 

First.  Irregularity  in  the  proceedings  of  the  court.  • 

Second.  Irregularity  of  the  jury. 
Third.  Irregularity  of  the  prevailing  party. 

Fourth.  Any  order  of  court,  or  abuse  of  discretion,  by  which  a  party 
was  prevented  from  having  a  fair  trial. 

Whether  the  error  complained  of  falls  within  one  or  the  other  of 

Moore    v.   The    State,    65   Ind.   213;  (v)  White  v.  Perkins,  16  Ind.  358; 

Hunter  v.  Hatfieid,  68  Ind.  416.  Harris  v.  Rupel,  14  Ind.  209;  Harring- 

(t)  Hunter  v.  Hatfieid,  68  Ind.  416.  ton  v.  State,  76  Ind.  112. 

(u)  Martin  v.  Harrison,  50  Ind. 270;  (w)  Peed    v.    Brenneman,    72    Indv 

Fryberger   v.    Perkins,    66    Ind.    19;  288;    Morris  v.  The  State,  1    Blkf.  :J7; 

Heath  r.  West,  68  Ind.  548;   Lewis  r.  Ex  parte  Hradley, 48  Ind.  548;  Veatch 

Ewing.  70  Ind.  282  ;  Stott  v.  Smith,  70  v.  The  State,  60  Ind.  291. 

Ind.  208;   McDaniel  v.  Mattingly,  72  (x)  Ante,  ?  873;  Parsons  r.   St«>ck- 

Ind.  349;  Burke  v.  The  State,  72  Ind.  bridge,  42  Ind.  121. 
392;    \V".-<1  r.  Crane,  75  Ind.  207. 


574  NEW    TRIAL — VENIRE   DE   XOVO.  [CHAP. 

these  causes,  it  must  be  shown  that  the  irregularity  was  such  as  to  pre- 
vent the  party  from  having  a  fair  trial. y 

It  is  not  sufficient  in  assigning  any  of  the  causes  for  a  new  trial, 
under  this  specification,  to  use  the  language  of  the  statute.  The  par- 
ticular act  constituting  the  irregularity  complained  of  must  be  specifi- 
cally set  forth.2 

The  causes  arising  under  this  specification  will  be  considered  separately. 

878.  Irregularity  in    the   proceedings  of  the  court. — This 
cause  for  a  new  trial  has  been  so  construed  as  to  apply  to  errors  com- 
mitted before  the  cause  has  reached  a  trial.     It  extends  also  to  mere 
irregularities  occurring  at  the  trial.     As,  for  example,  rulings  upon 
applications  for  a  continuance,  for  a  change  of  venue,  motions  to  sup- 
press depositions,  dismissal  of  appeals,  and  the  like.    Errors  committed 
during  the  pendency  of  the  trial  fall  under  the  eighth  specification, 
"  error  of  law  occurring  at  the  trial." 

879.  Continuance. — Action  taken  by  the  court  on  an  application 
for  a  continuance  is  cause  for  a  new  trial,  and  falls  within  the  specifica- 
tion under  consideration.* 

It  will  be  seen  by  the  authorities  cited,  that  the  failure  to  move  for 
a  new  trial,  on  the  ground  of  error  in  granting  or  refusing  a  continu- 
ance, waives  such  error. 

It  is  not  sufficient  to  assign  the  ruling  as  error  in  the  supreme  court. 
There  must  be  a  motion  for  a  new  trial  and  a  bill  of  exceptions,  show- 
ing the  motion  for  a  continuance,  the  affidavit  in  support  of  the  mo- 
tion, and  the  ruling  of  the  court  thereon,  to  present  the  question.6 

A  ruling  upon  an  application  for  a  continuance  may,  in  some  cases, 
fall  within  the  eighth  specification  of  the  statute ;  for  example,  where 
an  amendment  is  permitted  on  the  trial,  and  a  continuance  is  asked  for 
on  that  ground.0 

The  question  whether  the  cause  falls  within  one  or  the  other  of  the 
specifications  is  of  no  practical  importance,  as  the  action  of  the  court 
may  properly  be  assigned  as  error  of  the  court  in  granting,  or  refusing 
to  grant  a  continuance,  without  specifying  whether  it  is  error  of  law 

(y)  Telford  v.  Wilson,  7-1  Ind.  555;  McCoy,   53   Ind.   63;     Westerfield  v. 

Musselman  v.  Musselman,  44  Ind.  106;  Spencer,  61  Ind.  339;  Nichols  r.  The 

R.  S.  1881,  §  559;  Busk.  Prac.,  p.  224.  State,  65  Ind.  512;  Hughes  v.  Ainslee, 

(z)   Buskirk's  Prac.,  p.  224;  ante,  §  28  Ind.  346;  Buskirk's  Prac,  p.  224. 

869.     .  (b)   Buskirk's  Prac,  p.  224;  ante,  \ 

(a)  Kent  v.   Lawson,   12  Ind.  675;  870;  post,  §938;   Hughes  v.  Ainslee,  28- 

Popham  v.  Snider,  17  Ind.  149;  Carr  Ind.  346. 

v.   Eaton,   42   Ind.   385;    Arbuckle  v.  (c)  Morgan  v.  Hyatt,  62  Ind.  560. 


XXI.]  NKW    TRIAL — VENIRE   DE   NOVO.  575 

occurring  at  the  trial  or  an  irregularity  in  the  proceedings  of  the 
court.     This  is  the  safer  and  better  practice. 

880.  Change  of  venue.— Whether  a  ruling  upon  a  motion  for  a 
change  of  venue  should  be  made  a  ground  for  a  new  trial,  or  assigned 
independently  as  error  in  the  supreme  court,  has  been  a  matter  of 
some  doubt.  There  can  be  no  good  reason  why  a  motion  for  a  change 
of  venue  should  not  be  presented  in  the  same  way  as  a  motion  for  a 
continuance.  It  may  be  regarded  as  settled  by  the  authorities  that 
such  ruling  is  cause  for  a  new  trial,  and  falls  under  the  first  specifica- 
tion of  the  statute.*1 

But  upon  an  appeal  from  an  order  appointing  a  receiver,  it  is  held 
that  the  ruling  upon  an  application  for  a  change  from  the  judge  may 
l)e  assigned  as  error  in  the  supreme  court,  a  new  trial  not  being  author- 
ized in  such  proceedings." 

The  court  say  :  "  The  refusal  of  the  court  to  change  the  venue  is 
ground  for  a  new  trial,  and  after  final  judgment  can  not  be  considered 
on  appeal  unless  it  is  assigned  as  a  reason  therefor.  This  is  because 
the  error  may  thus  be  corrected,  and  a  failure  to  ask  for  a  new  trial  for 
such  cause  is  a  waiver  of  it. 

"A  party,  however,  does  not  waive  an  objection  which  he  has  had 
no  opportunity  of  making  ;  and,  therefore,  this  rule  does  not  apply  on 
an  appeal  from  an  order  appointing  a  receiver,  as  the  law  in  such  pro- 
ceeding makes  no  provision  for  a  new  trial.  Indeed,  strictly  speaking, 
there  has  been  no  trial,  and  therefore  can  not  be  a  new  trial  upon  such 
appeal.  We  think  that  all  questions  upon  which  the  validity  or  regu- 
larity of  such  appointment  depends  are  necessarily  involved,  and  may 
be  considered. 

"If  the  court  have  no  jurisdsction  of  the  subject  of  the  action,  or 
of  the  person  of  the  defendant,  it  would  be  error  to  appoint  a  receiver, 
and  it  is  wholly  immaterial  whether  it  failed  to  acquire  jurisdiction  by 
service  of  process,  or  after  acquiring  it,  lost  it  by  the  proper  applica- 
tion for  a  change  from  the  judge.  In  either  case  the  appointment 
would  be  error." 

This  must  be  true  as  to  other  interlocutory  orders,  where  the  statute 
authorizes  an  appeal  and  no  motion^for  a  new  trial  is  provided  for. 

Error  in  reinstating  a  cause,  in  which  a  change  of  venue  has  been 
granted,  or  refusing  sufficient  time  to  perfect  the  change,  must  be  as- 
signed as  cause  for  a  new  trial/ 

(d)  Horton  r.  Wilson,  25  Ind.  31fi;  (e)  Shoemaker  v.  Smith,  74  Ind.  71, 
Knarr  v.  Cunaway,  53  Ind.  120;  Ber  75. 

lin  v.  Oglesbee,  05  Ind.  308;  Walker         (f )  Wiley  v.  Barclay,  58  Ind.  577. 
r    Heller.  73  "Ind.  4ll;  Krutz  v.  How- 
ard, 70  Ind.  174. 


576  NEW   TRIAL  — VENIRE    DE    NOVO.  [CHAP. 

The  ground  for  a  new  trial  must  be  specifically  stated.  To  use  the 
language  of  the  statute  is  not  sufficient." 

881.  Depositions. — A  ruling  made  upon  a  motion  to  suppress  or 
strike  out  parts  of  a  deposition  is  cause  for  a  new  trial  and  is  within 
this  specification.11 

882.  Interrogatories  to  party. — It  would  seem  that  the  rejection 
of  interrogatories  to  a  party  in  the  action,  or  other  ruling  thereon,  would 
fall  within  the  first  specification  of  the  statute.' 

But  the  supreme  court  has  held  otherwise,  saying:  "Whether  this 
practice  is  right  or  wrong  we  can  not  review  it  in  this  case.  The  ques- 
tion is  not  properly  presented.  If  an  error  was  committed,  it  was  not 
an  'error  of  law  occurring  at  the  trial.'  It  is  obvious  that  a  new  trial 
would  not  correct  such  an  error;  for  after  a  new  trial  was  granted,  the 
error  would  stand  in  the  record  the  same  as  before.  Such  a  question 
can  be  presented  only  by  an  assignment  of  error.  "j 

This  same  reasoning  would  apply  with  equal  force  if  applied  to  an 
application  for  a  continuance  or  for  a  change  of  venue.  Neither  are 
"  errors  of  law  occurring  at  the  trial,"  but  all  of  them  fall  within 
the  specification,  "irregularity  in  the 'proceedings  of  the  court  by 
which  the  party  was  prevented  from  having  a  fair  trial."  To  refuse  to  re- 
quire answers  to  the  interrogatories  is  to  deprive  a  party  of  evidence  that 
may  be  used  in  his  favor,  and  may  undoubtedly  prevent  a  fair  trial.(l) 

883.  Dismissal  of  appeal. — Where  an  appeal  from  a  justice  of 
the  peace  has  been  erroneously  dismissed  in  the  circuit  court,  it  is  an 
irregularity  in  the  proceedings  of  the  court,  and  can  only  be  presented 
by  a  motion  for  a  new  trial. k 

884.  Orders  of  court ;   abuse  of  discretion. — It  is  said  that, 
"  Orders  of  the  court  and  abuse  of  discretion  embrace  rulings  of  the 
court  in  reference  to  the  inspection  or  production  of  papers  and  records, 
the  refusal  to  postpone  to  a  day  during  the  term  the  trial  of  the  cause, 
the  setting  of  a  cause  down  for  trial  out  of  the  order  in  which  it  stands 
on  the  docket,  the  issuing  or  refusing  to  issue  a  special  venire  for  a  jury, 
the  refusal  to  permit  a  party  to  prosecute  or  defend  an  action  as  a  poor 
person,  the  refusal  to  require  a  party  to  answer  interrogatories  or  give 
security  for  costs,  or  the  like."  ' 

(g)  Horton  v.  Wilson,  25  Ind.  316.  (i)  Buskirk's  Prac.,  p.  225. 

(h)  The  Jefferson ville,   etc.,    K.   K.  (j)  Reed  v.  Spay de,  56  Ind.  394. 

Co.  v.  Riley.  39  Ind.  568;    Mercer  r.  (k)  Watts  v.  The  Anderson,  etc.,  K. 

Patterson,   41    Ind.  440;    Patterson  v.  R.  Co.,  60  Ind.  56. 

Lord,  47  Ind.  203.  (1)  Buskirk's  Prac.,  p.  225. 

(1)  But  see  Cates  v.  Thayer,  93  Ind. 
156,  where  the  rule  is  still  adhered  to. 


XXI.]  NEW    TRIAL — VENIRE   DE   NOVO.  577 

The  authorities,  including  those  cited  by  the  learned  author,  do  not 
support  him  as  to  all  of  the  propositions  laid  down. 

As  to  orders  of  court  for  the  inspection  of  papers,  the  error  has  been 
considered  by  the  supreme  court  without  question,  without  a  motion 
for  a  new  trial,  upon  an  assignment  that  the  court  erred  in  making  the 
order  for  inspection,  etc.m 

We  have  seen  that  rulings  upon  interrogatories  to  the  parties  can 
not  be  assigned  as  a  cause  for  a  new. trial." 

As  to  the  other  orders  and  proceedings  mentioned  by  the  author, 
none  of  the  authorities  cited  hold  that  they  are  causes  for  a  new  trial 
under  this  specification.  Notwithstanding  the  text  is  not  supported 
by  the  authorities,  the  causes  named  seem  to  fall  within  the  clause  of 
the  statute  as  stated.  An  order  compelling  a  party  to  go  to  trial  of  a 
cause  out  of  its  regular  order  was  assigned  as  an  irregularity  of  the 
court  in  compelling  such  trial.  No  question  appears  to  have  been 
raised  as  to  its  being  a  proper  assignment.0  But  it  falls  more  properly 
under  the  latter  clause  of  the  specification,  as  it  was  clearly  an  "  order 
of  court,"  which,  if  it  prevented  a  fair  trial,  was  within  this  cause. 

The  court  may  abuse  its  discretion  at  almost  any  stage  of  the  cause, 
and  the  statute  is  broad  enough  to  cover  the  error,  but  a  case  is  not 
likely  to  arise  where  the  same  action  of  the  court  would  not  fall  within 
the  cause,  "  irregularity  in  the  proceedings  of  the  court,"  or,  "error 
of  law  occurring  at  the  trial." 

So,  of  any  "  orders  of  court"  that  may  be  complained  of. 

It  has  been  held  that  to  allow  improper  argument  on  the  trial  is 
within  this  specification. p 

So  where  the  court  compels  a  trial  without  an  issue.q 

To  allow  an  improper  amendment  of  the  pleadings  on  the  trial  may 
amount  to  an  abuse  of  discretion  that  will  be  cause  for  a  new  trial.1 

885.  Irregularity  of  the  jury  or  prevailing  party. — It  was 
evidently  the  intention,  in  this  clause  of  the  statute,  to  distinguish  be- 
tween mere  irregularity  of  the  party  or  jury  and  misconduct,  which  is 
made  a  separate  cause  for  a  new  trial.8 

(m)  Silvers  v.  The  Junction  R.  R.  looley  r.  The  State,  58  Ind.  182;  Kin- 
Co.,  17  Ind.  143;  Spencer  v.  Woollen,  naman  v.  Kinnaman,71  Ind.  417,  Por- 
42  Ind.  364.  ter  v.  Choen,  GO  Ind.  338,  Combs  v. 

(n)  Reed   v.   Spayde,  56   Ind.  394;  The  State,  75  Ind.  215. 

ante,  §882.  (q)   Hiatt  v.  Rink.  64  Ind.  590. 

(o)  Bradley  c.  Bradley,  45  Ind.  67.  (r)  Yoltz  r.  Newbert,  17  Ind,  187. 

(p)  Richie  i-.The  State,  59  Ind.  121;  (s)  Buskirk's  Prac.  226. 
Huber  r.  The  State,  57  Ind.  341 ;  Gil- 

37  '    . 


578  NEW    TRIAL — VENIRE    DE   NOVO.  [CHAP. 

This  statutory  provision  has  been  found  to  be  unimportant  in  prac- 
tice. While  cases  may  arise  where  an  irregularity  of  the  jury  or  pre- 
vailing party,  not  amounting  to  misconduct,  should  authorize  the 
granting  of  a  new  trial,  this  is  not  likely  to  occur. 

Whether  the  act  constituting  the  irregularity  is  done  purposely  or 
not,  if  it  was  such  as  to  injure  the  losing  party  and  prevent  a  fair  trial, 
it  would  undoubtedly  be  properly  grounded  under  the  second  specifica- 
tion of  the  statute.1 

2.    MISCONDUCT   OF   THE   JURY  1  OR   PREVAILING   PARTY. 

886.  Of  the  jury  must  be  gross  and  injurious. — There  is  and 
should  be  a  marked  distinction  between  misconduct  of  the  jury  and 
misconduct  of  the  prevailing  party  as  to  its  effect  upon  the  verdict. 
Where  the  misconduct  is  that  of  the  jury,  not  connected  with  any  act 
of  the  prevailing  party,  a  new  trial  will  not  be  granted  unless  the  jury 
or  some  member  of  the  jury  has  been  guilty  of  gross  misbehavior, 
such  as  probably  affected  the  rights  of  the  losing  party,  and  prevented 
a  fair  trial." 

But  wrhere  the  misconduct  of  the  jury,  or  any  member  of  the  jury, 
is  so  connected  with  the  misconduct  of  the  prevailing  party,  or  other 
person  acting  in  his  interest,  whether  with  his  knowledge  or  not,  as  to 
indicate  a  corrupt  intent  on  the  part  of  any  juror,  or  any  attempt  to 
tamper  with  the  jury,  the  courts  are  quick  to  set  aside  the  verdict  and 
grant  a  new  trial.7 

•  887.  Drinking  intoxicating  liquors. — The  question  whether  the 
mere  drinking  of  intoxicating  liquors  by  a  juror,  at  his  own  expense, 
without  his  becoming  intoxicated,  is  such  misconduct  as  will  set  aside 
the  verdict,  has  been  a  matter  of  much  controversy.  The  decided 
cases  are  not  uniform  in  the  different  states,  some  holding  that  it  is  suf- 
ficient to  show  that  a  juror  drank  intoxicating  liquor,  without  a 
showing  that  it  was  done  with  any  wrongful  intent,  or  that  it  was  done 
at  the  instance  or  at  the  expense  of  *any  person  interested  in  the  result 
of  the  cause,  or  that  the  juror's  mind  was  so  affected  as  to  render  him 
less  capable  of  understanding  and  passing  upon  the  questions  involved. 

(t)  Post.  g§  886.  897.  Wilds  v.  Borgan,  57  Ind.  453;  McCar- 

(u)  Billiard  New  Trials,  2d  ed.  51,  \  thy  v.  Kitchen,  59   Ind.  500,  506  ;  The 

7;    Stutsman    v.   Barringer,    16    Ind.  City  of  Indianapolis  v.  Scott,  72  Ind. 

3»;;J;  Harrison    v.  Price,  22    Ind.  165;  196;  Vol.  3,  p.  434. 

Whelchell  v.  The  State,  23   Ind.  89;  (v)  Billiard  N.  T.,  2d  ed.,  202,  §  6, 

Flatter   v.    McDermitt,  25    Ind.    326;  and  authorities  cited. 

Medler    v.   The    State,   26    Ind.    171;  (1)  Form  of  affidavit,  Vol.  3,  p.  436 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  579 

In  others  the  rule  enforced  is  in  harmony  with  that  established  in  other 
cases  of  misconduct,  and  requires  that  there  must  be  a  showing  that 
liquor  was  taken  in  such  quantities  or  under  such  circumstances  as  to 
affect  the  mind  of  the  juror  and  probably  affect  the  result,  to  the  in- 
jury of  the  complaining  party." 

In  this  state  the  decided  cases  are  not  uniform  on  this  point. 

In  an  early  case  the  effect  upon  the  verdict,  where  it  was  shown  that 
some  of  the  jurors,  in  a  criminal  case,  separated  from  the  others  with- 
out leave  of  the  court,  and  drank  whisky  but  did  not  become  intoxi- 
cated, was  considered.  The  court  say  :  "Does  this  constitute  of  itself 
sufficient  cause  for  a  new  trial  ?  The  sum  of  the  modern  authorities 
is  that  such  conduct  is  exceedingly  reprehensible,  and  ought  to  be  vis- 
ited with  punishment  by  the  court  below  ;  but  that  where  the  verdict 
appears  clearly  to  be  right  upon  the  evidence,  a  new  trial  will  not  be 
granted ;  but  if  the  correctness  of  the  verdict  be  doubtful,  then  such 
misconduct  will  result  in  a  new  trial.  But  in  all  cases,  the  misconduct 
being  established,  it  will  impose  upon  the  prosecution  the  necessity  of 
removing  suspicion  by  showing,  as  was  done  in  this  case,  that  the 
offending  jurors  were  not  influenced  adversely  to  the  defendant,  or  in 
any  respect  rendered  less  capable  of  discharging  their  duties.  These 
doctrines  seem  to  us  wise,  and,  in  the  present  case,  the  evidence  not 
being  in  the  record  we  could  not,  for  this  cause,  unless  our  statute 
changes  the  law,  reverse  the  judgment."1 

It  was  held  that  our  statute  did  not  fchange  the  rule.  In  a  later 
case,  where  the  facts  were  not  materially  different,  a  different  rule  is 
laid  down:  "The  jurors  had  taken  upon  them  an  oath  well  and  truly 
to  try  the  cause,  etc.,  and  had  been  solemnly  sent  out  to  deliberate 
upon  questions  involving  the  life  of  an  unfortunate  fellow  being.  If 
misbehavior,  such  as  that  shown  by  the  affidavits,  and  which  is  with- 
out attempted  palliation  or  justification,  should  not  be  regarded  as  suffi- 
cient to  set  aside  the  verdict,  it  would  be  a  stigma  upon  the  law  and  a 
disgrace  to  the  courts.  We  do  not  mean  to  say  that  the  court  should 
enter  upon  the  question  as  to  how  far  such  conduct  was  or  was  not  ex- 
cusable or  innocuous.  .  .  .  But  as  to  the  sufficiency  of  such  mis- 

(w)  Proffatt's   Jury  Trials,  $  398-  Burrell  r.  Phillips,  1  Gall.  360;    The 

403,  and  cases  cited;  Hilliard  N.  T.,  2d  People  v.  Douglass,  4  Cow.  26;  Com. 

ed.  200.  and  oases  cited;  Rose  r.  Smith,  v.  Roby,  12  Pick.  496  ;  Wilson  r.  Abra- 

15  Am.  Dec.  331;  The  People  v.  Doug-  hams,  1  Hill,  207;  U.  S.  v.  Gibert,  2 

lass,  15  Am.  Dec.  332.  and  note.  Sumn.   21;    Rome  v.    The    State,    11 

(x)  Creek  r.  The  State,  24  Ind.  151  ;  Humph.     491;     Thompson's    Case,    8 

citing  The  People  r.  Ransom,  7  Wend.  Gratt.  637. 
423;  Smith  v.  Thompson,  1  Cow.  221; 


580  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

behavior,  unexplained,  to  set  aside  the  verdict,  the  authorities  are 
abundant  and  satisfactory. "y 

The  statute  authorizing  new  trials  in  criminal  cases,  under  which  the 
two  Indiana  cases  were  decided,  differs  somewhat  from  the  statute  reg- 
ulating the  granting  of  new  trials  in  civil  cases.2 

But  there  is  nothing  in  the  two  statutory  provisions  that  would  ren- 
der the  effect  upon  the  verdict,  of  drinking  intoxicating  liquors,  differ- 
ent in  criminal  and  civil  cases. 

Some  of  the  cases  cited  from  other  states,  holding  the  mere  taking 
of  a  drink  of  liquor  to  be  sufficient  cause  for  granting  a  new  trial 
were  civil  cases.  ' 

It  seems  to  be  settled  therefore,  in  this  state,  that  the  drinking  of 
intoxicating  liquors,  without  any  further  showing,  is  sufficient  ground 
for  setting  aside  the  verdict  and  granting  a  new  trial. 

888.  Communicating  -with  other  persons.— *The  statute  re- 
quires that  the  court  shall  admonish  the  jury  "  that  it  is  their  duty 
not  to  converse  with  each  other,  or  suffer  themselves  to  be  addressed 
by  any  other  person,  on  any  subject  of  the  trial."  a 

To  disobey  the  instructions  given,  by  conversing  together  about  the 
case,  before  it  is  finally  submitted  to  them,  or  with  any  other  person, 
before  the  verdict  is  returned  into  court,  is  misconduct ;  but  whether 
it  is  cause  for  a  new  trial  depends  upon  whether  the  communication 
was  such  as  would  be  calculated  to  influence  the  finding  of  the  ver- 
dict, or,  if  made  by  the  juror,  to  show  corruption  or  such  feeling  on 
his  part  as  would  show  bad  faith,  or  prejudice  such  as  would  be  calcu- 
lated to  affect  the  rights  of  the  complaining  party. 

In  order  to  warrant  a  new  trial  for  this  cause,  it  must  appear  that 
the  communication  was  such  as  to  prejudice  the  rights  of  the  losing 
party. b 

But  where  such  a  communication  is  made  to  the  jury  or  a  juror  as 
would  naturally  be  calculated  to  influence  the  verdict,  and  especially 

(y)  Davis  v.  The  State.  35  Ind.  496;  (z)  2  G.  &  H.,  p.  423,  §  142. 

citing  Ryan  v.  Harrow,  27  Iowa,  494  ;  (a)   K.  S.  1881,  §  540;  ante,  §  798. 

The  People  v.  Douglass,    4  Cow.  26;  (b)  Barlow   v.   The   State,   2   Blkf. 

Urant  v.  Fowler,  7  Cow.  562 ;  Wilson  114;  Porter  v.  The  State,  2  Ind.  435; 

v.   Abrahams,  1  Hill,  207;    The  State  Harrison  v.  Price,  22  Ind.  165;   Har- 

r.  Bullard,  16  N.  H.  139;  Jones  v. The  ding  v.  Whitney,  40  Ind.  379;     Me- 

State,  13  Texas,  168;   Pelham  v.  Page,  Carthy  v.  Kitchen.  59  Ind.  500;  Prof- 

6   Ark.  535;    Gregg   v.    McDaniel,   4  fatt's   Jury   Trials,   §   390;    Hilliard's 

Harring.   (Del.)    367;    The   Common-  New  Trials,  2d  ed.,  p.  206. 
wealth  v.  Roby,  12  Pick.  496. 


XXI.]  NEW    TRIAL — VF.XIRE    DK    XOVO.  5gl 

where  the  verdict  seems  to  be  founded  upon  a  theory  suggested  by  the 
communication  made,  a  new  trial  should  be  granted.0 

889.  Presence  in  the  jury  room  of  officer  in  charge. — It  is 
the  policy  of  the  law  that  the  deliberations  of  the  jury  upon  their  ver- 
dict shall  be  in  secret,  and  uninfluenced  by  the  presence  of  any  other 
person.  It  has  been  held,  therefore,  that  the  presence  of  the  bailiff  in 
the  jury  room  during  their  deliberations,  although  there  is  no  com- 
munication between  him  and  any  member  of  the  jury,  is  good  ground 
for  a  new  trial. d 

In  the  case  of  The  People  v.  Knapp,  the  court  say,  per  Cooley,  J.: 
"  When  the  jury  retire  from  the  presence  of  the  court,  it  is  in  order 
that  they  may  have  an  opportunity  for  private  and  confidential  discus- 
sion, and  the  necessity  for  this  is  assumed  in  every  case,  and  the  jury 
sent  out  as  of  course,  where  they  do  not  notify  the  court  that  it  is  not 
needful.  The  presence  of  a  single  other  person  in  the  room  is  an  in- 
trusion upon  this  privacy  and  confidence,  and  tends  to  defeat  the  pur- 
pose for  which  they  are  sent  out.  ...  In  their  private  deliberations, 
the  jury  are  likely  to  have  occasion  to  comment  with  freedom  upon  the 
conduct  and  motives  of  parties  and  witnesses,  and  to  express  views  and  be- 
liefs that  they  could  not  express  publicly  without  making  bitter  enemies. 
Now  the  law  provides  no  process  for  ascertaining  whether  the  officer  is 
indifferent  and  without  prejudice  or  favor  as  between  the  parties,  and 
as  it  is  admitted  he  has  no  business  in  the  room,  it  may  turn  out  that 
he  goes  there  because  of  his  bias,  and  in  order  that  he  may  report  to  a 
friendly  party  what  may  have  been  said  to  his  prejudice,  or  that  he 
may  protect  him  against  unfavorable  comment  through  the  unwilling- 
ness of  jurors  to  criticise  freely  the  conduct  and  motives  of  one  person 
in  the  presence  of  another  who  is  his  known  friend.  Or,  the  officer 
may  be  present  with  a  similar  purpose  to  protect  a  witness  whose  testi- 
mony was  likely  to  be  criticised  and  condemned  by  some  of  the  jurors. 
.  .  .  We  have  said  enough  already  to  show  that  it  is  not  conver- 
sation alone  that  is  mischievous ;  the  mere  presence  of  the  officer 
within  the  hearing  of  the  jury  is  often  quite  as  much  so." 

This  language  is  quoted  approvingly  in  the  case  of  Rickard  v.  The 
State,  where  the  same  conclusion  is  reached. 

The  affidavit  charging  the  presence  of  the  officer  in  the  jury  room 
must  be  positive  and  not  on  information.6  Counter  affidavits,  show- 
ing that  no  injury  could  have  resulted,  may  be  submitted,  and  upon 
such  showing  the  new  trial  may  be  denied.  (1) 

(c)  Erwin  v.  Bulla,  29  Ind.  95.  (e)  McClary  v.  The  State,  75  Ind.  260. 

(d)  Rickard   v.  The   State,  74   Ind.  (1)   Doles  v.  The  State,  97  Ind.  555; 
275;  The  People  v.  Knapp,  42  Mich.  Fitzgerald  v.  Goff,  99  Ind.  28;  Clayton 
267.  v.  State,  100  Ind.  201. 


582  NEW   TRIAL — VENIRE    DE   NOVO.  [CHAP. 

890.  Separation  of  the  jury. — The  right  of  the  jury  to  separate 
and  the  duty  of  the  court  in  connection  therewith  have  been  con- 
sidered/ 

The  separation  of  the  jury  without  leave,  or  in  violation  of  the  in- 
structions of  the  court,  may  be  ground  for  a  new  trial.  But  the  rule 
is  well  established  that,  to  authorize  a  new  trial,  something  more  than 
a  mere  separation  of  the  jury  must  be  shown.8 

Where  the  jury,  after  retiring,  notified  the  officer  in  charge  of  them  that 
they  had  agreed  and  separated  during  the  night,  when  they  had  not  agreed 
upon  a  verdict,  but "  agreed  to  disagree,"  and  in  the  morning  they  agreed 
upon  and  returned  a  general  and  special  verdict  for  the  plaintiff,  it  was 
held  that  a  motion  for  a  new  trial  should  have  been  sustained.11 

Where,  in  addition  to  the  fact  of  separation,  it  is  shown  that  any 
influence  has  been  brought  to  bear  upon  any  member  of  the  jury  cal- 
culated to  influence  the  verdict,  a  new  trial  should  be  granted.1 

891.  Viewing  the  premises. — The  jury  may,  at  the  discretion 
of  the  court,  be  sent  out  to  view  the  premises  or  property  in  contro- 
versy.j 

It  is  important  that  the  instruction  against  communicating  with  each 
other  or  third  parties  should  be  strictly  enforced  at  such  time.  If  any 
thing  is  said  in  connection  with  the  matter  in  controversy  calculated  to 
influence  the  verdict,  a  new  trial  will  be  granted.k 

The  jury  should  do  nothing  more  than  view  the  premises,  to  en- 
able them  the  better  to  understand  the  evidence  given  on  the  trial ;' 
but  a  violation  of  their  duty  in  this  respect,  although  it  amounts  to 
misconduct,  will  not  entitle  the  losing  party  to  a  new  trial  unless  it  ap- 
pears to  have  been  such  as  to  have  influenced  the  finding  of  the  jury."1 

892.  Taking  notes   of  the  evidence. — It  is  misconduct  for  a 
juror  to  take  notes  of  the  evidence  during  the  trial." 

It  has  been  held  that,  where  a  member  of  a  jury  is  found  to  be  tak- 
ing notes  of  the  evidence,  and,  when  instructed  that  it  is  not  proper,  de- 
sists, it  is  not  such  misconduct  as  will  vitiate  the  verdict.0 

(f )  Ante,  §§  798,  840.  (k)  Erwin  v.  Bulla,  29  Ind.  95. 

(g)  Harter  v.  Seaman,  3    Blkf.  27;         (1)   Heady  v.  The  Vevay,  etc.,  Turn- 
Drummond   v.    Leslie,    5    Blkf.    453;     pike  Co.,  52  Ind.  117. 

Stutsman  v.  Barringer,   16  Ind.   363;         (m)  The    City    of    Indianapolis    r. 
Hilliard's  New  Trials,  2d  ed.,  p.  235,     Scott,  72  Ind.  19G,  204. 
and  cases  cited;   Clayton  v.  State,  100         (n)  Ante,  §  799. 

Ind-  201.  (0)  Batterson  v.  The  State,  63  Ind 

(h)  Short  v.  West,  30  Ind.  367.  ,„,  ' 

(i)  Harter  v.  Seaman,  3  Blkf.  27. 
(j)  Ante,  §  797. 


XXI.]  NEW   TRIAL — VENIRE   DE    XOVO.  583 

And  where  no  objection  to  the  juror  taking  notes  is  made  at  the  time 
his  misconduct  can  not  be  made  ground  for  a  new  trial. p 

But  where  the  objection  is  made  and  the  juror,  though,  instructed 
not  to  do  so  by  the  court,  persists  in  taking  notes,  a  new  trial  should  be 
granted.'' 

893.  Taking  out  papers. — It  is  well  settled  by  authority  in  this 
state  that  no  part  of  the  evidence  in  the  cause  can  be  taken  to  the 
jury  room  without  the  consent  of  the  parties,  except  such  exhibits  as 
are  made  parts  of  the  pleadings  and  have  been  used  in  evidence/ 

But  to  entitle  the  party  to  a  new  trial  it  must  appear  that  some  use 
was  made  of  the  evidence  to  his  injury.8 

It  should  not  be  required,  in  this  class  of  cases,  that  the  party  mov- 
ing for  a"  new  trial  should  show  affirmatively  that  he  was  injured  by 
the  use  of  the  evidence.  It  should  be  sufficient  to  show  that  evidence 
favorable  to  the  adverse  party  was  taken  to  the  jury  room  and  used, 
unless  it  affirmatively  appears  that  the  evidence  did  not  influence  the 
verdict.  To  require  proof  that  the  jury  were  actually  influenced  by 
the  evidence  is  unreasonable.  In  most  cases,  to  make  such  a  showing 
would  be  impossible.  If  the  evidence  used  is  favorable  to  the  party  in 
whose  favor, the  verdict  is  returned,  and  it  was  read  by  the  jury,  noth- 
ing more  should  be  required  in- support  of  the  motion. 

But  where  it  appears  to  the  satisfaction  of  the  court,  that  although 
the  evidence  was  improperly  taken  to  the  jury  room  and  read  by  the 
jury,  it  had  no  influence  whatever  upon  their  minds  in  forming  their 
verdict,  a  new  trial  will  be  denied.1 

It  is  not  safe,  however,  to  depend  upon  the  mere  conclusion  of  a 
juror  that  he  was  not  influenced.  Although  he  may  state,  conscien- 
tiously, that  the  evidence  had  no  influence  on  his  mind,  his  belief  that 
he  was  not  affected  thereby  should  have  but  little  weight.  But  if  it 
satisfactorily  appears  that  the  juror,  before  reading  the  evidence,  was 
in  favor  of  returning  the  verdict  that  was  afterwards  returned,  this 
would  furnish  strong  evidence  that  his  verdict  did  not  result  from  mis- 
conduct. There  should  be,  in  addition  to  the  juror's  mere  conclusion 
that  the  evidence  had  no  influence  upon  him,  some  affirmative  facts  or 

(p)  Cluck  v.  The  State,  40  Ind.  263,  v.  Briggs,  50  Ind.  346;  Nichols  v.  The 

272.  State,  65  Ind.  512. 

(q)  Cheek  v.  The  State,  35  Ind.  492.  (s)   Dersch  v.  The  State,  13  Ind.  434; 

(r)  Ante,  §779;  Chance  v.  The  In-  Collins  v.  Frost,  54  Ind.  242;  Ball  v. 

dianapolis,  etc.,  R.  R.  Co.,  32  Ind.  472;  Carley,  3  Ind.  577. 

Eden  v.  Lingenfelter,  39  Ind.  19  ;  Lotz  (t)  Proffatt's  Jury  Trials,  §  405,  and 

cases  cited. 


584  ,  NEW   TRIAL — VENIRE   DE    NOVO.  [CHAP. 

circumstances  to  corroborate  his  statement,  more  especially  where  it  ap- 
pears that  the  evidence  was  furnished  by  the  successful  party." 

894.  Furnishing  law  to  the  jury.— The  jury  must  take  the  law 
of  the  case  from  the  court,  and  can  not  be  allowed  to  read  the  law 
bearing  upon  the  case  from  books  after  their  retirement.    So  it  has 
been  held  in  a  criminal  case  that,  where  a  copy  of  Bishop's  Criminal 
Law,  that  had  been  used  in  argument  on  the  trial,  was  furnished  the 
jury  in  their  room  and  read  by  them,  it  was  such  misconduct  as  en- 
titled the  defendant  to  a  new  trial. v 

In  the  case  cited,  the  book  was  furnished  the  jury,  at  their  request, 
by  the  bailiff.  The  result  must  be  the  same  where  the  law  is  furnished 
the  jury  by  the  court  without  the  consent  of  parties. w 

In  this  state  the  rule  that  the  law  must  come  from  the  court  and  not 
from  books  has  been  strictly  enforced. 

Thus  it  has  been  held  that  it  is  error  for  the  court,  in  its  charge  to  a 
jury,  to  read  from  a  law  book.* 

895.  Compromise  verdict. — The  verdict  of  a  jury  should   be 
the  result  of  their  deliberate  judgment  after  a  careful  consideration  of 
the  evidence.     To  arrive  at  the  verdict  by  chance,  or  by  a  compromise 
that  results  in  a  verdict  against  the  judgment  of  any  member  of  the 
jury,  is  gross  misconduct  that  must  vitiate  the  verdict. y 

But  it  is  held  that  in  actions  for  unliquidated  damages  the  jury  may 
resort  to  means  of  arriving  at  the  amount  of  the  verdict  that  would 
not  be  allowed  in  criminal  cases  or  in  civil  cases  where  the  damages 
are  liquidated.2 

This  same  rule  has  been  recognized,  in  one  case,  as  being  applicable 
to  criminal  cases.8 

Notwithstanding  these  cases,  the  verdict  must  appear  to  result  from 
an  agreement  of  all  of  the  jurors,  brought  about  by  a  fair  and  honest 
effort  to  arrive  at  the  truth ;  and  where  it  appears  that  it  was  the  re- 
sult of  an  agreement  or  understanding  previously  entered  into,  by 
which  members  of  the  jury  were  bound  to  abide  by  a  verdict  arrived 
at  by  compromise  or  chance,  the  verdict  must  be  set  aside.b 

(u)  Buskirk's  Prac.,  p.  228,  and  au-  (y)  Ante,  §  842. 

thorities  cited.  (z)  Guard  v.  Risk,  11  Ind.  156;  The 

(v)  Newkirk  v.  The  State,  27  Ind.  1.  St.  Louis,  etc.,  R.  W.  Co.  v.  Myrtle,  51 

(w)  Proffatt's   Jury    Trials,   §   404;  Ind.  566. 

Merrill  v.  Navy,  10  Allen.  416.  (a)   Batterson  v.  The  State,  63  Ind. 

(x)   Bradley   v.  The   State,  31   Ind.  531,  536. 

492,  510.  (b)  Guard  v.  Risk,  11  Ind.  156;  The 


XXI.]  NEW   TRIAL — VENIRE   DE    NOVO.  585 

Where  the  amount  sued  for  is  unliquidated  some  latitude  must 
necessarily  be  allowed  the  jury  in  arriving  at  the  correct  amount,  and 
where  the  verdict  is  reached  by  an  honest  giving  way  by  one  juror  to 
the  judgment  of  another,  by  which  they  are  brought  to  an  agreement 
as  to  the  amount  of  their  finding  the  verdict  should  not  be  disturbed  ; 
but  where  the  amount  is  reached  by  chance,  as,  for  example,  where 
each  juror  sets  down  the  amount  for  which  he  is  willing  to  fincl,  with 
an  agreement  or  understanding  that  the  amounts  thus  fixed  shall  be 
added  together  anoVdivided  by  twelve,  the  result  to  fix  the  amount  of 
the  verdict  to  be  returned,  a  new  trial  must  be  granted. 

896.  Communications  between  court  and  jury. — The  law, 
that  the  jury  shall  not  communicate  with  other  persons,  applies  to 
the  judge  of  the  court.     No  communication  should  take  place  be- 
tween the  court  and  jury,  or  any  member  of  the  jury,  about  any  mat- 
ter connected  with  the  case  except  in  open  court  in  the  presence  of  the 
parties.     Such  communication  is  misconduct  on  the  part  of  both,  and 
where  it  is  such  as  would  be  reasonably  calculated  to  influence  the  ver- 
dict a  new  trial  will  be  granted.0 

897.  Misconduct   of    prevailing   party. — A   verdict    that  is 
reached  by  the  misconduct  of  the  prevailing  party  will  be  set  aside 
and  a  new  trial  granted,  although  there  has  been  no  misconduct  or  in- 
tentional wrong  on  the  part  of  the  jury. 

Mr.  Buskirk,  in  his  work  on  Practice,  thus  classifies  misconduct  of 
a  party  for  which  a  new  trial  will  be  granted  : 

"  1.  Surreptitiously  getting  before  the  jury  a  paper  or  documentary 
evidence. 

"  2.  Approaching  a  juror  on  the  subject  of  the  trial,  or  by  treating 
a  juror,  or  by  taking  a  juror  home  with  him,  or  any  trick  or  artifice 
resorted  to  by  the  party,  or  by  any  other  person  by  his  procurement, 
by  which  a  juror  is  improperly  influenced  to  render  a  verdict  for  such 
party. 

"  3.  All  disingenuous  attempts  to  stifle  or  suppress  evidence,  or  to 
thwart  the  proceedings  of  the  court,  or  to  obtain  an  unconscionable  ad- 
vantage, or  .to  mislead  the  court  or  jury."  d 

St.  Louis,  etc.,  R.  W.  Co.  v.  Myrtle,  51  (c)  Hall  r.  The   State,  8  Ind.  439, 

Ind.  566;  Dunn  v.  Hall,  8  Blkf.  32;  443;  Fish  v.  Smith,  12  Ind.  563;  Smith 

Hilliard's  New  Trials,  2d  ed.,  p.  160,  v.  McMillen,  19  Ind.  391;  Parmlee  v. 

§  T2,  and  cases  cited;   Warner  v.  Kob-  Sloan,  37  Ind.  469. 

inson,  1  Am.  Dec.  38,  and  note;  s.  c.,  1  (d)   Buskirk's  Prac.,  p.  229;  citing  1 

Root,  194;  Proffatt's  Jury  Trials,  406;  Graham  &  Wat.  New  Trials,  45  to  60, 

ante,  §  842.  inclusive,  and  cases  there  cited. 


586  NEW    TRIAL — VENIRE   DE    NOVO.  [CHAP. 

Where  misconduct  of  the  prevailing  party  is  shown,  the  court  will 
not  stop  to  inquire  what  effect  it  had  upon  the  verdict,  but  a  new  trial 
will  be  granted.6 

And  where  the  affidavits  in  support  of  the  motion  are  sufficient  to 
cast  upon  the  prevailing  party  suspicion  that  he  lias  tampered  with  a 
juror,  and  counter-affidavits  do  not  fully  and  fairly  answer  the  charge, 
the  motion  should  be  sustained/  , 

It  is  not  sufficient  to  charge  the  misconduct  in  the  general  language 
of  the  statute ;  the  specific  acts  of  misconduct  mu^t  be  set  forth. « 

3.    ACCIDENT   OR   SURPRISE,    WHICH    ORDINARY   PRUDENCE    COULD    NOT 
HAVE   GUARDED   AGAINST. 

898.  How  assigned. — It  is  not  sufficient,  under  this  specification, 
to  assign  the  cause  for  a  new  trial  in  the  language  of  the  statute.    The 
facts  showing  the  surprise,  and  that  it  was  not  such  as  ordinary  pru- 
dence could  have  guarded  against,  must  be  set  out  and  be  supported 
by  affidavit.  h(l) 

899.  At  the  evidence  of  the  adverse  party.  —The  causes  aris- 
ing under  this  specification  of  the  statute  usually  grow  out  of  alleged 
surprise  at  the  testimony.     There  is  a  marked  difference  between  the 
rights  of  the  plaintiff  and  defendant,  where  the  evidence  claimed  to 
have  surprised  the  party  comes  from  his  adversary. 

It  is  held  that  the  plaintiff  is  not  entitled  to  a  new  trial  on  account 
of  surprise  at  any  evidence  given  by  the  defendant,  as  he  may  dismiss 
his  action  and  thereby  avoid  a  finding  against  him.' 

In  the  case  of  Cummins  v.  Walden,  the  rule  is  thus  stated  :  "It  is 
a  general  rule,  indeed,  that  a  plaintiff,  after  a  verdict  against  him,  can 
have  no  claim  to  a  new  trial  on  account  of  his  having  been  surprised 
by  any  evidence  of  the  defendant. 

"If  the  plaintiff  find  himself  unprepared  to  meet  the  defendant's  evi- 
dence he  always  has  it  in  his  power  to  suffer  a  non-suit,  which  will 
leave  him  at  liberty  to  sue  again  for  the  same  cause  of  action.  It 
would  be  giving  the  plaintiff  too  great  an  advantage  to  permit  him  to 
take  the  chance  of  a  verdict,  and  when  it  is  lost  to  relieve  him  from 
the  verdict  and  give  him  a  chance  with  another  jury  merely  because 

(e)  Huston    v.   Vail,   51    Ind.   299;  (h)  Snodgrass  v.  Hunt,  15  Ind.  274; 
Hilliard's  New  Trials,  2d  ed.,  p.  202,  §  6.  Vol.  3,  pp.  432-434. 

(f )  Huston  v.  Vail,  51  Ind.  299.  (i)  Atkisson  v.  Martin,  39  Ind.  242; 

(g)  Gregory   v.  Schoenell,   55   Ind.  Cummins    v.   Walden,    4    Blkf.    307 ; 
101.  Hilliard's  New  Trials,  2d  ed.,  p.  555, 

(1)  Form  of  affidavit,  Vol.  3,  p.  437.    §  59 ;  Vol.  3,  p.  434. 


XXI.]  NEW   TRIAL — VEXIKE   DE    NOVO.  587 

the  evidence  against  his  claim  was  stronger  on  the  first  trial  than  he 
expected  it  would  be."J 

Neither  party  has  a  right  to  be  surprised  at  the  evidence  of  his 
adversary  that  is  competent  and  legitimate  under  the  issues.k 

But  where  one  party,  with  a  view  to  influence  his  adversary,  tells 
him  that  certain  matters  in  issue  will  not  be  controverted,  or  that 
certain  evidence  will  not  be  offered,  the  opposite  party  has  the  right  to 
rely  upon  such  statement,  and  if  such  evidence  is  offered  at  the  trial, 
and  he  is  not  prepared  to  meet  it,  and  is  injured  thereby,  he  will  be 
entitled  to  a  new  trial.1 

A  new  trial  will  not  be  granted  on  the  ground  of  surprise  at  evidence 
that  was  immaterial.™ 

900.  At  the  testimony  of  his  own  witnesses. — Whether 
surprise  at  the  testimony  of  a  witness  can  ever  be  sufficient  cause  for 
a  new  trial,  by  the  party  introducing  him,  in  the  absence  of  any  fraud 
or  trick  by  which  the  party  was  misled,  has  been  a  matter  of  consider- 
able doubt.  The  authorities  on  the  point,  in  this  state,  are  not 
uniform. 

It  was  held  in  some  of  the  earlier  cases  that  such  surprise  was  not 
ground  for  a  new  trial." 

But  in  a  later  case  the  earlier  decisions  are  reviewed,  and  a  different 
conclusion  reached.0 

It  may  be  regarded,  therefore,  as  the  settled  rule  in  this  state  that 
a  defendant  may  be  granted  a  new  trial  on  the  ground  of  surprise  at 
the  testimony  of  his  own  witness,  where  he  is  himself  without  fault  and 
has  been  injured  thereby. 

This  rule  can  not  apply  to  the  plaintiff.  If  he  can  avoid  an  adverse 
verdict  by  dismissing  his  action,  when  surprised  by  the  testimony  of 
the  defendant's  witnesses,  he  may  do  the  same  when  surprised  at  the 
testimony  of  his  own. 

In  the  case  of  Todd  v.  The  State,  the  court,  in  speaking  of  the  cases 

(j)  Cummins    v.   Walden,    4    Blkf.  332;  Hill  v.  Sutton,  47  Ind.  592;  Hum- 

307,  citing   Price  v.  Brown,  1  Strange,  phreys  v.  The  State,  75  Ind.  469. 

691;  Cooke   v.   Berry,   1    Wilson,  98;  (1)  Haynes  v.  The  State,  45  Ind.  424. 

Harrison    v.    Harrison,    9    Price,   89;  (m)  Bissot   v.   The    State,    53   Ind. 

Jackson  v.  Roe.  7  Johns.  77.  408 ;  Humphreys  v.  The  State,  75  Ind. 

(k)  Cox  v.  Hitchings,  21  Ind.  219;  409. 

Peck  v.  Hensley,  21  Ind.  344;  Pauley  (n)  Graeter  v.  Fowler,  7  Blkf.  554; 

v.  Short,  41    Ind.    ISO;    Brownlee   v.  Guard  v.  Risk,  11   Ind.  156;   Ruger  v. 

Kenneipp,  41   Ind.  216;  Bell  v.  Tan-  Bungan,  10  Ind.  451. 

guy,  46  Ind.  49  ;  Talcott  v.  Jackson,  41  (o)  Todd  v.  The  State.  25  Ind.  212. 
Ind.  201 ;  Chamberlain  v.  Reid,  49  Ind. 


588  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

of  Graeter  v.  Fowler,  and  Cummins  v.  Walden,  in  which  it  was  held 
that  the  plaintiff  was  not  entitled  to  a  new  trial,  say  :  "  It  is  not  our 
purpose  here  to  question  the  correctness  of  the  ruling  of  the  court  in 
Graeter  v.  Fowler,  supra.  The  application  for  the  new  trial  was  made 
by  the  plaintiff,  and  the  case  therefore  came  clearly  within  the  rule 
laid  down  in  Cummins  v.  Walden,  4  Blackf.  307,  to  which  we  have 
referred,  but  we  think  the  reasons  given  by  the  learned  judge  are  stated 
too  broadly.  "P 

901.  Other  grounds    of  surprise. — A  party  may  have   other 
and  different  grounds  of  surprise,  unconnected  with  the  evidence  of 
either  of  the  parties,  that  will  entitle  him  to  a  new  trial.     Thus  it  has 
been  held  that  where  a  cause  has  been  called  and  passed,  and  the  court 
announced  that  causes  then  passed  would  not  be  again  called  for  trial, 
and  the  attorney  for  the  defendants  informed  them  of  the  fact,  and  told 
them  they  need  not  attend  longer  upon  the  court,  and,  subsequently, 
at  the  same  term,  the  cause  was  called  for  trial,  and  in  the  absence  of 
the  defendants  over  the  objection  of  their  attorney,  was  tried  by  the 
court;  upon  a  showing  of  these  facts,  and,  in  addition,  that  the  defend- 
ants had  a  valid  defense  setting  it  out,  and  that  they  were,  by  reason 
of  the  facts  stated,  unprepared  for  trial,  a  new  trial  should  have  been 
granted.q 

Surprise,  occasioned  by  a  correct  ruling  of  the  court  upon  a  question 
of  law,  is  not  a  ground  for  a  new  trial/ 
So  of  surprise  at  the  result  of  a  trial.8 

902.  Diligence  must  have  been  used  to  avoid  surprise. — 
The  party  asking  for  relief  from  a  verdict  on  the  ground  of  surprise 
must  show  that  he  is  without  fault.     Although  it  may  appear  that  he 
was  surprised  in  such  way  as  to  entitle  him  to  relief,  if  he  might,  with 
proper  care  and  diligence,  have  avoided  the  surprise,  a  new  trial  will 
be  denied.1     And  the  negligence  of  the  attorney  is  the  negligence  of 
the  party." 

903.  Must  have  caused  injury. — The  surprise  complained  of 
must  have  been  injurious  to  the  party  complaining,  and  it  must  appear 

(p)  Todd  v.  The  State,  25  Ind.  212,  (s)  Lane  v.  Brown,  22  Ind.  239. 

221.  (t)  Cox   v.   Harvey,    53    Ind.   174; 

(q)  Edsall   v.   Ayers,    15   Ind.  286;  Stanley  v.  Sutherland,  54  Ind.  339. 

Vol.  3,  pp.  433,  434.  (u)  Cox  v.  Harvey,  53  Ind.  174. 

(r)   Reals  v.  Beals,  27  Ind.  77. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  589 

that  if  a  new  trial  is  granted  the  effect  of  the  surprise  will  probably  be 
avoided  on  a  second  trial. T 

If,  therefore,  it  appears  that  the  verdict  is  clearly  right  under  the 
evidence,  and  that  the  result  must  be  the  same  if  a  second  trial  is  al- 
lowed, a  riew  trial  will  be  denied. w 

4.    EXCESSIVE    DAMAGES. 

904.  Applies  to  actions  for  tort. — This  specification,  it  is  be- 
lieved, was  intended  to  apply  solely  to  actions  for  damages  growing  out 
of  tort.  Otherwise  the  next  following  specification,  which  is  made  to 
apply  to  "  actions  on  contract,  and  for  injury  or  detention  of  prop- 
erty," would  be  surplusage  so  far  as  it  relates  to  a  recovery  for  too 
much.1 

It  is  held  that,  in  order  to  raise  the  question  of  the  amount  of  dam- 
ages in  an  action  on  contract,  the  fifth  statutory  cause,  "  error  in  the 
assessment  of  the  amount  of  recovery,"  must  be  assigned. •' 

Whether  the  question  as  to  the  amount  of  recovery  could  be  pre- 
sented, in  an  action  on  contract,  by  an  assignment  as  a  reason  fur  a 
new  trial  that  the  damages  were  excessive,  was  presented  in  a  later 
case,  but  the  point  was  not  decided.2 

According  to  the  syllabus,  it  is  held  that  the  cause  for  a  new  trial, 
that  the  damages  are  excessive,  applies  to  actions  on  contract  as 
well  as  for  tort,  but  the  court  expressly  states  that,  having  come  to 
the  conclusion  that  the  offer  to  remit  came  too  late,  other  questions 
discussed,  one  of  which  was  whether  such  an  assignment  raised  the 
question  of  the  amount  of  the  recovery  or  not,  were  not  decided.  But 
the  question  before  the  court  was  whether  a  new  trial  had  been  prop- 
erly granted  in  the  court  below,  and  it  seems  that  the  new  trial  was 
granted  on  the  ground  and  under  the  assignment  that  the  damages 
were  excessive.  The  court  held  the  new  trial  was  properly  granted, 
and  so  far  it  may  be  regarded  as  a  decision  that  such  a  reason  for  a 
new  trial  is  proper  in  an  action  on  contract. 

In  a  later  case  it  is  expressly  held  that  such  a  reason  for  a  new  trial 
raises  the  question  in  an  action  on  the  bond  of  a  county  treasurer  for 
money  unaccounted  for.a 

(v)  Stanley  v.   Sutherland,  54  Ind.  (z)  Hill    v.   Ntewman,  47    Ind.  187, 

339,  355;    Kuger  i:    Bungan,  10  Ind.  197. 

451.  (a)  Hostetler  v.  The  State,  62  Ind. 

(w)  Billiard' s  New  Trials,  2d  ed.,  p.  183.     See.  on  this  point,  The   Board, 

524,  \  6.  etc.,  of  Harrison  County  v.  Byrne,  67 

(x)  Buskirk's  Prac.,  p.  234.  Ind.  21. 

(y)  Dix  v.  Akers,  30  Ind.  431. 


590  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

The  question  can  not  be  regarded  as  settled  by  the  decided  cases. 
The  only  safe  practice  for  the  present  is  to  assign  both  the  fourth  and 
fifth  causes  where  the  damages  assessed  are  too  large.  In  actions  for 
tort  the  fourth  is  the  only  cause  that  can  be  properly  assigned. 

905.  Can  not  be  assigned  as  error. — The  cases  are  numerous 
in  which   the  attempt  has   been  made  to  raise  the   question  of  the 
amount  of  damages,  in  the  supreme  court,  by  an  assignment  of  error 
that  the  damages  are  excessive.     It  has  been  uniformly  held  that  the 
question  can  not  be  presented  by  an  assignment  of  error.     It  is  made 
a  cause  for  a  new  trial,  and  if  not  presented  by  a  motion  for  a  new 
trial  it  is  waived. b 

The  question  of  the  amount  of  damages  will  not  be  considered 
where  the  motion  is  made  on  other  grounds.0 

But  the  court  will  look  into  the  question  of  illegal  evidence  in  de- 
termining the  question  of  damages. d 

906.  Damages  must  be  grossly  excessive. — The  amount  of 
damages  to  be  assessed  is  a  matter  so  peculiarly  within  the  province 
of  the  jury  that  the  courts  rarely  interfere  with  the  verdict  on  the 
ground  that  the  damages  are  excessive  in  actions  for  tort.     The  rule  is 
that  a  new  trial  will  not  be  granted  unless  the  damages  assessed  are 
grossly  and  outrageously  excessive.6 

907.  Omission  to  assess  nominal  damages. — The  rule  is  well 
established  that  a  new  trial  will  not  be  granted  for  the  failure  to  assess 
nominal  damages,  where  substantial  justice  has  been  done.f 

908.  Remittitur. — Where   the    damages    are    excessive,   or   the 

(b)  Campbell  v.  Swasey,  12  Ind.  70;         (d)  Oiler  v.  Bodkey,  17  Ind.  600. 
Brown    v.   Ellis,    35    Ind.   377;    The         (e)  Picquet  v.  McKay,  2  Blkf.  465; 
Western  Union  Tel.  COD.  Hopkins,  49  Clarkson   v.    McCarty.    5    Blkf.   574; 
Ind.  223;    Marks  v.  The   Trustees  of  Guard  v.  Kisk,  11   Ind.  156;  Yater  t>. 
Purdue  University,  56  Ind.  288;  Hunt  Mullen,   23    Ind.   562;    Alexanders 
v.  Milligan,  57  Ind.  141 ;  Rout  v.  Man-  Thomas,  25  Ind.  268;  The  Pittsburgh, 
ifee,  59  Ind.  525;  Floyd  v.  Maddox,  68  etc.,  K.  W.  Co.  v.  Hennigh,    39  Ind. 
Ind.  124;  Warner  v.  Curran,  75  Ind.  509;    The   Town    of    Westerville    v. 
309.  Freeman,  66  Ind.  255;    Hoagland  v. 

(c)  Spurrier  v.  Briggs,  17  Ind.  529;  Moore,  2  Blkf.  167;  Harris  v.  Eupel, 
Walpole  v.  Carlisle,  32  Ind.  415;  The  14  Ind.  209.     But  see,   on   this   point, 
City  of  Indianapolis  v.  Parker,  31  Ind.  The  Toledo,  etc.,  R.  W.  Co.  v.  Wright, 
230;  Bradley  v.  Bradley,  45  Ind.  67;  68  Ind.  586. 

Buskirk's  Prac.,  p.  236;  McGrimes  v.  (f )  The  State  v.  Miller,  5  Blkf.  381  r 
The  State,  30  Ind.  140;  Huston  v.  Jennings  v.  Loring,  5  Ind.  250;  Hud* 
Greenwood,  30  Ind.  364.  speth  v.  Allen,  26  Ind.  165. 


XXI.]  NEW    TRIAL — VENIRE   DE   NOVo.  591 

amount  of  recovery  assessed  too  large,  under  the  fifth  specification  the 
plaintiff  may  avoid  the  granting  of  a  new  trial  by  entering  a  remittitur 
of  the  excessive 'damages.8  This  should  be  done  before  the  motion  is 
ruled  upon.h 

But  it  is  held  that  the  remittitur  may  be  entered  in  the  appellate 
court  to  prevent  a  reversal,  but  does  not  avoid  costs  of  the  appeal.' 

And,  where  the  true  amount  can  be  ascertained  by  the  supreme 
court,  the  cause  will  be  affirmed  for  that  amount  on  condition  that  the 
residue  be  remitted,  otherwise  the  judgment  will  be  reversed.j 

It  has  been  held  that  the  trial  court  can  not  fix  the  proper  amount 
of  recovery  and  require  the  plaintiff  to  remit  the  residue  or  grant  a 
new  trial. k 

The  case  cited  was  one  where  the  damages  could  not  be  determined 
by  calculation,  but  depended  upon  uncertain  and  conflicting  evidence. 

If  the  supreme  court  can  affirm  or  reverse  a  judgment,  on  the  condi- 
tion that  a  remittitur  be  entered,  there  is  no  good  reason  for  holding 
that  the  court  below  can  not  grant  or  refuse  a  new  trial  on  the  same 
condition,  thus  avoiding  the  expense  of  an  appeal.  No  injury  can  re- 
sult from  such  ruling,  as  the  action  of  the  court  would  be  subject  to 
review  by  the  supreme  court  if  the  amount  required  to  be  remitted 
is  too  large,  thus  reducing  the  amount  of  theplaintiff  srecovery  below 
the  proper  amount. 

Where  the  amount  of  damages  to  which  the  plaintiff  is  entitled  is 
uncertain,  depending  upon  conflicting  evidence,  a  remittitur  should  not 
be  required,  as  the  question  is  peculiarly  one  for  the  jury.  A  new  trial 
should  be  granted  at  once  if  the  court  finds  the  damages  to  be  exces- 
sive. 

5.    ERROR     IN     THE     ASSESSMENT     OF     THE     AMOUNT     OF     RECOVERY, 
WHETHER   TOO   LARGE   OR  TOO   SMALL. 

909.  "What  included  within  this  specification. — This  cause 
for  a  new  trial  is  expressly  limited  to  actions  upon  contract,  or  for  the 
injury  or  detention  of  property.1 

So,  where  the  action  falls  within  those  named,  the  cause  assigned, 
where  the  amount  of  recovery  assessed  is  too  large,  should  be  "  error 

(g)  Lambert  v.  Blackman,    1   Blkf.  425;  Schafer  v.  Smith,    63   Ind.  227; 

59;  Murray  ^Phillips,  59  Ind.  56.  Frazer  v.  Boss,  66  Ind.  1. 

(h)  Hill  v.  Newman,    47   Ind.  187.  (k)  Cromwell  v.  Wilkinson,  18  Ind. 

(i)  Humphrey  v.  Merit,  51  Ind.  197;  365. 

Pate  v.  Roberts,  55  Ind.  277.  (1)  R.  S.  1881,  §  559. 

(j)  Browning  •».    Merritt,    61    Ind. 


592  NEW    TRIAL — VENIRE   DE   NOVO.  [CHAP. 

ill  assessing  the  amount  of  recovery  too  large,"  and  not  on  the  ground 
of  excessive  damages."1 

That  the  amount  of  recovery  assessed  is  too  small  must  be  assigned 
under  this  specification,  as  it  is  not  provided  for  by  any  other." 

910.  Where  cause  will  be  reversed  on  ground  that  assess- 
ment is  too  large. — In  actions  falling  within  this  specification,  the 
amount  of  recovery  can  usually  be  determined  by  the  pecuniary  I  <> 
resulting  to  the  plaintiff;  therefore,  the  rule  that  the  verdjct  will  not 
be  set  aside,  unless  the  damages  are  outrageously  excessive,  does  not 
apply.0 

If  it  appears  that  the  finding  is  too  large  a  new  trial  will  be 
granted. 

But  the  supreme  court  will  not  reverse  a  cause  where  the  amount  of 
the  excess  is  so  small  as  not  to  affect  the  substantial  rights  of  the 
parties. p 

Nor  where  the  amount  of  recovery  depends  upon  a  calculation,  the 
data  for  which  are  uncertain.q 

911.  Finding  for  more  than  amount  claimed  in  complaint. 
— It  was  formerly  held  that  it  was  error  to  render  judgment  for  a  sum 
greater  than  that  prayed  for  in  the  complaint.1" 

But  this  is  not  the  law  under  the  present  code.  The  amount  the 
plaintiff  is  entitled  to  recover  must  be  determined  from  the  facts  stated, 
and  not  from  the  prayer  of  his  complaint." 

The  rule  is  otherwise  where  there  is  a  default.' 

The  mere  fact  that  the  verdict  or  finding  is  for  an  amount  greater 
than  that  prayed  for  in  the  complaint,  where  the  facts  alleged  as  a 
cause  of  action  entitle  the  plaintiff  to  recover  the  amount  found,  is  not 
cause  for  a  new  trial. 

The  prayer  in  the  complaint  may  be  amended  after  verdict  to  corres- 
pond therewith,  and  if  not  made  in  the  court  below  will  be  treated  as 
made  on  appeal." 

(m)  Dix  v.  Akers,  30  Ind.  431-;  Bus-  (s)  11.  S.  1881,  §  338;  Baker  v.  Sim- 
kirk's  Prac.  234 ;  ante,  §  904.  mons,  40  Ind.  442 ;  Barnes  r.  Smith, 

(n)  Frank  v.  Kessler,  30  Ind.  8.  34  Ind.  616;  Webb  v.  Thompson,  23 

(o)  Nutter  v.  The  Junction  R.  R.  Ind.  428;  liobinson  v.  Jamison,  33 

Co.,  13  Ind.  479.  Ind.  122;  Raymond  r.  Williams,  24 

(p)     Hall  v.  Hall,  34  Ind.  314.  Ind.  41G  ;  ante,  g  848. 

(q)  Wilson  v.  Vance,  34  Ind.  440.  (t)  R.  S.  1881,  §  385;  ante,  §  425. 

(r)  Roberts  v.  Muir,  7  Ind.  544;  (v)  Webb  v.  Thompson,  23  Ind. 

O'Neal  v.  Wade,  3  Ind.  410.  428;  Baker  r.  Simmons,  40  lad.  442. 


XXI.]  NEW   TRIAL — VENIRE  DE  NOVO.  593 

912.  "Where  there  is  a  demurrer  to  the  evidence. — Upon  a 
demurrer  to  the  evidence  being  overruled,  a  jury  may  be  called  to  as- 
sess the  damages,  or  they  may  be  assessed  by  the  court.     In  either 
case  the  question  as  to  the  amount  of  damages,  whether  too  large  or  too 
small,  or  whether  excessive  under  the  fourth  specification  of  the  statute, 
must  be  raised  by  a  motion  for  a  new  trial  as  in  other  cases." 

As  to  all  other  questions,  where  there  is  a  demurrer  to  the  evidence, 
no  motion  is  necessary  or  proper. * 

913.  Amount  of  recovery  too  small.— The  statute  provides: 
"A  new  trial  shall  not  be  granted  on  account  of  the  smallness  of  the 
damages,  in  actions  for  an  injury  to  the  person  or  reputation,  nor  in  any 
other  action  where  the  damages  shall  equal  the  actual  pecuniary  injury  ' 
sustained.  "y 

This  section  makes  a  clear  distinction  between  actions  for  an  injury 
to  the  person  or  reputation  and  other  cases. 

Where  the  action  is  for  an  injury  to  the  person  or  reputation,  the 
language  of  the  statute  is  unqualified  that  a  new  trial  shall  not  be 
granted  on  account  of  the  smalluess  of  the  damages. 

It  has  been  held  that  the  clause  of  the  section,  "nor  in  any  other 
action  where  the  damages  shall  equal  the  actual  pecuniary  injury  sus- 
tained," qualifies  the  whole  of  the  section  going  before  it,  and,  there- 
fore, a  new  trial  might  be  granted  in  all  cases  named  therein  where  the 
damages  assessed  did  not  equal  the  pecuniary  injury  sustained.2 

But  this  case  has  been  expressly  overruled.* 

In  the  case  of  Sharpe  v.  O'Brien,  the  court  say:  "We  are  quite 
clear  that  the  section  was  intended  to  and  does  make  a  distinction  be- 
tween actions  for  an  injury  to  the  person  or  reputation,  and  the  other 
actions  alluded  to,  when  the  damages  shall  equal  the  pecuniary  injury. 
In  actions  for  injuries  to  the  person  or  reputation,  no  matter  how  small 
the  damages  may  be,  whether  they  equal  the  pecuniary  injury  sustained 
or  not,  the  court  can  not,  for  that  reason,  grant  a  new  trial.  But  in  the 
other  actions  referred  to,  if  the  damages  do  not  amount  to  the  pecuni- 
ary injury  sustained  the  court  may  grant  a  new  trial.  We  are  con- 
firmed in  the  opinion  that  this  construction  is  correct,  from  the  fact 
that,  as  we  have  seen,  no  provision  is  made  among  the  reasons  for  a 

(w)  Lindley  v.  Kelley,  42  Ind.  294;  (y)  R.  S.  1881,  §  560. 

Strough  i\  Gear,  48  Ind.  100.  (z)  Sullivan  v.  Wilson,  15   Ind.  246. 

(x)  Strough  v.  Gear,  48  Ind.  100.  (a)  Sharpe  v.  O'Brien,  39  Ind.  501. 
38 


594  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP* 

new  trial  for  granting  a  new  trial  in  such  a  case  as  this  for  the  small- 
ness  of  the  damages.  !'b 

The  rule  that  a  new  trial  can  not  be  granted  on  account  of  the 
smallness  of  the  damages,  has  been  applied  to  an  action,  by  an  ad- 
ministrator, for  an  injury  to  the  person  resulting  in  death.0 

6.    THAT   THE   VERDICT    IS    NOT    SUSTAINED   BY   SUFFICIENT    EVIDENCE 
OR   IS    CONTRARY   TO   LAW. 

914.  Not  sustained  by  sufficient  evidence. — The  decided 
cases  arising  under  this  specification  are  very  numerous.  It  is  verv 
rarely  the  case  that  a  cause  will  be  reversed  in  the  supreme  court  for 
this  cause.  The  rule  by  which  the  court  below  should  be  governed, 
iiowever,  is  essentially  different  from  that  by  which  the  appellate  court 
should  be  controlled.  The  court  below  has  the  same  opportunity  to 
know  what  evidence  is  given  at  the  trial  that  the  jury  has,  and  is 
much  more  competent  to  determine  the  weight  that  should  be  given  to 
the  testimony  of  witnesses.  It  is  a  well-known  fact  that  juries  are  not 
always  controlled  by  the  evidence.  It  is  not  uncommon  for  a  verdict 
to  be  returned,  not  only  against  the  weight  of,  but  in  total  disregard 
and  in  defiance  of  the  evidence.  The  victim  of  a  strong  case  like  this 
sometimes  finds  relief  in  an  appellate  court.  Nothing  short  of  such 
a  case  can  avail  him  on  appeal.  For  this  reason  it  should  be  the 
especial  care  of  the  lower  courts  to  see  that  the  verdict  of  a  jury, 
known  to  be  against  the  clear  weight  of  the  evidence,  should  be  set 
aside  and  a  new  trial  granted.  There  is,  perhaps,  no  part  of  the  duties 
of  the  trial  courts  that  is  so  constantly  neglected  and  openly  violated 
as  the  one  that  requires  that  a  verdict,  not  sustained  by  sufficient  evi- 
dence, shall  be  set  aside.  The  delicacy  evinced  by  the  judges,  when 
called  upon  to  set  aside  the  verdict  of  a  jury,  is  remarkable,  and  not 
unfrequently  results  in  a  positive  denial  of  justice.  While  the  sanc- 
tity of  a  finding  rendered  by  a  jury  should  call  for  proper  respect, 
it  should  not  prevent  the  court  from  setting  aside  the  verdict 
when  it  is  known  to  be  wrong,  nor  be  allowed  to  stand  in  the  way 
of  a  fair  and  impartial  administration  of  justice.  The  tendency  of 
judges  to  avoid  the  duty  of  setting  aside  unjust  verdicts  has  received 
the  attention  of  our  own  as  well  as  that  of  other  courts.  A  clear  dis- 
tinction is  made  between  the  duty  of  the  trial  and  appellate  courts. 

Mr.  Buskirk,  in  his  work  on  Practice,  says  :  "  The  trial  judge  should 
fearlessly  grant  a  new  trial  whenever  he  believes  the  justice  of  the 

(b)  Buskirk's  Prac.  235.  (c)  Douthitt   v.    Smith,    Adm'r,   69 

Ind.  463. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  595 

case  requires  it.  This  would  save  much  delay  and  expense  to  litigants ; 
for,  when  a  new  trial  is  improperly  refused,  the  party  is  driven  to  seek 
relief  in  an  appellate  court ;  and,  if  the  judgment  is  reversed,  there 
can  seldom  be  a  full  and  fair  re-trial  of  the  cause.  Some  of  the  wit- 
nesses may  be  dead ;  some  may  have  removed  to  distant  parts  of  the 
country ;  and  the  recollection  of  the  actual  facts  has  faded  from  the 
memories  of  such  of  the  witnesses  as  remain.  Great  deference  ought 
to  be  paid  to  the  verdict  of  a  jury,  and  a  new  trial  should  be  refused 
whenever  the  verdict  is  fairly  and  reasonably  sustained  by  the  evi- 
dence; but,  o'n  the  other  hand,  whenever  the  judge,  by  his  more  ma- 
tured judgment  and  greater  experience,  sees  that  there  L  a  failure  cf 
proof  on  some  point  material  to  the  issue,  and  which  is  necessary  to 
support  the  verdict,  or  whenever  the  evidence  plainly  and  manifestly 
fails  to  sustain  the  finding,  a  new  trial  should  be  awarded."d 

The  rule  that  should  govern  the  trial  court  is  that  a  new  trial  should 
be  granted,  unless  it  clearly  appears  that  substantial  justice  has  been 
done.6 

In  the  case  of  Christie  v.  Holmes  the  rule  is  clearly  stated :  "It 
should  always  be  kept  in  mind  that  the  rule  which  governs  a  circuit 
court  in  deciding  a  motion  for  a  new  trial,  upon  the  ground  that  the 
verdict  is  not  sustained  by  sufficient  evidence,  is  very  different  from 
the  rule  which  governs  the  supreme  court  in  deciding  the  same  ques- 
tion when  brought  before  it  by  appeal.  The  circuit  court  presides 
over  the  case,  knows  with  what  ability  or  animus  it  is  prosecuted  or 
defended,  has  the  jury  and  their  conduct  before  it,  sees  the  witnesses, 
their  looks  and  manners,  hears  their  statements  and  knows  whether 
willingly  or  reluctantly  made ;  in  short,  sees  the  actual  trial  from  its 
beginning,  and  throughout  its  progress,  to  the  end,  with  all  the  indices 
of  truth  and  falsehood  before  it,  from  all  of  which  it  may  judge  the 
question  and  decide. 

"  In  the  circuit  court  it  must  clearly  appear  that  substantial  justice 
has  been  done  by  the  verdict  or  a  new  trial  should  be  granted  ;  in  the 
supreme  court  it  must  clearly  appear  that  substantial  justice  has  not 
been  done  or  the  judgment  should  be  affirmed.  If  each  court  will 
constantly  remember  the  rule  of  law  which  governs  it,  and  always  put 
it  into  practical  effect,  then  substantial  justice  will  be  done  in  every 
case." 

915.  Rule  in  the  supreme  court. — In  the  supreme  court  the 
rule  is  materially  different.  A  cause  will  not  be  reversed  if  the  evi- 

(d)  Buskirk's  Prac.,  p.  237.  (e)  Christie  r.  Holmes,  57  Ind.  314; 

Evans  v.  >iewland,  34  Ind.  112. 


596  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

dence  is  conflicting.  But  where  the  evidence  is  all  against  the  verdict, 
or  where  there  is  no  evidence  to  sustain  it,  or  where  there  is  no  evi- 
dence to  prove  any  one  fact  necessary  to  entitle  the  successful  party  to 
recover,  the  cause  will  be  reversed  on  appeal.' 

The  rule  is  the  same  whether  the  finding  is  by  a  jury  or  by  the 
court. g 

The  reason  of  the  rule  will  be  found  fully  and  clearly  stated  in  Cox 
v.  The  State  and  Christie  v.  Holmes. 

There  are  numerous  other  cases  bearing  upon  this  question,  but  :v 
full  citation  of  them  here  could  serve  no  useful  purpose.  Enough 
have  been  cited  to  show  what  the  rule  is,  and  the  reasons  upon  which 
it  is  founded.  The  number  of  cases  reversed  on  appeal  for  this  canst' 
proves  how  frequently  the  lower  courts  allow  unjust  verdicts  to  stand, 
on  account  of  their  reluctance  to  interfere  where  a  jury  have  decided. 

916.  Verdict  contrary  to  law. — This  branch  of  the  sixth  speci- 
fication may  be  given  a  very  broad  application.  In  one  sense,  every 
verdict  that  is  not  sustained  by  the  evidence,  when  applied  to  the  law, 
or  where  any  error  has  been  committed  during  the  trial  affecting  the 
result,  would  be  a  verdict  contrary  to  law. 

It  is  said :  "A  motion  for  a  new  trial  on  the  ground  that  the  verdict 
or  decision  is  contrary  to  law  is  somewhat  in  the  nature  of  a  demurrer 
to  the  evidence.  It  admits  all  the  evidence  given  upon  the  trial,  but 
says  that,  as  the  verdict  or  decision  based  upon  such  evidence  is  con- 
trary to  the  general  principles  of  the  law  applicable  to  the  issues  in- 
volved, judgment  should  not  be  rendered  thereon.  Such  a  motion  pre- 
sents to  the  nisi  prius  and  appellate  courts  a  question  of  law  merely."  h 

The  supreme  court  has  also  endeavored  to  state  definitely  what  is 
meant  by  the  term  "  contrary  to  law :  "  "  One  of  the  causes  for  a  new 
trial  is  that  the  verdict  is  '  contrary  to  law.'  What  is  meant  by  the 
phrase  '  contrary  to  law/  as  used  in  the  statute  ?  Clearly  not  a  verdict 
that  is  defective  or  insufficient  in  law  merely.  A  verdict  may  be  de- 
fective and  insufficient  in  law,  and  yet  not  be  contrary  thereto.  We 

(f)  Crossly  v.  O'Brien,  24  Ind.  325  ;  Bride,   69  Ind.  396;    Cunningham    >-. 

Roe  v.  Cronkhite,  55  Ind.  183;  Davis  Spillman,    72    Ind.   62;     Cox    v.   The 

v.  Grater,  62  Ind.  408;    Davis  v.  Ham-  State,  49  Ind.  568;  Christie  v.  Holmes, 

ilton,  71  Ind.  135;  Thomas  v.  Patton,  57  Ind.  314;    Hutchison  v.  Lewis,  75 

71  Ind.  241 ;   Daubenspeck  v.  Biggs,  71  Ind.  55;  Cooper  r.  The  State,  75  Ind. 

Ind.  255;   Reyman  v.  Mosher,  71  Ind.  62. 

596;  Spicely  v.  True,  14  Ind.  437;  Be-  (g)  Riley  v.  Boyer,  76  Ind.  152;  The 

van  v.  Tomlinson,  25  Ind.  253;  Evans  O.  &  M.  R.  W.  Co.  v.  Selby,  47  Ind. 

r.  Xewland,  34  Ind.  112;   Butterfield  471. 

v.  Trittipo,  67  Ind.  338;  Sharp  v.  Me-  (h)  Buskirk's  Prao.,  p.  239. 


XXI.]  M.\V    TRIAL — VENIRE   DE   NOVO.  597 

think  that  a  verdict  which  is  contrary  to  law  is  one  which  is  contrary 
to  the  principles  of  law  as  applied  to  the  facts  which  the  jury  were 
called  upon  to  try,  contrary  to  the  principles  of  law  which  should 
govern  the  canse."i 

In  a  later  case  the  court  quote  the  language  of  Bosseker  v.  Cramer, 
and  say:  "  It  is  not  always  easy  to  define  a  verdict  contrary  to  law. 
We  fully  approve  of  this  general  definition.  That  a  verdict  is  con- 
trary to  law  is  one  of  the  causes  for  which  a  new  trial  may  be  granted 
under  our  code;  and  we  think,  in  the  meaning  of  the  code,  that  a  ver- 
dict which  is  improperly  affected  by  any  error  of  law  occurring  at  the 
trial  is  a  verdict  contrary  to  law."j 

The  language  of  this  last  decision  makes  this  specification  cover 
every  error  that  could  be  reached  under  the  eighth  "  error  of  law  oc- 
curring at  the  trial."  Thus  a  party  may  reach  the  same  questions 
under  either  assignment.  Under  the  sixth,  the  motion  for  a  new  trial 
need  not  point  out  the  particular  error  complained  of,  as  it  is  sufficient, 
in  assigning  this  cause,  to  use  the  general  language  of  the  statute. 
That  there  is  no  proof  of  the  venue  in  a  criminal  case,  it  is  held,  may 
be  reached  by  either  of  the  grounds  named  in  specification  sixth. k 

So  the  same  question  may  arise  under  the  two  assignments,  "  not 
sustained  by  sufficient  evidence,"  and  "  contrary  to  law,"  as  it  is  mani- 
fest that  a  verdict  not  supported  by  the  evidence  is  a  verdict  contrary 
to  law.1 

Where  there  is  a  special  finding  of  facts  by  the  court  that  is  con- 
trary to  law,  or  not  sustained  by  sufficient  evidence,  the  remedy  is  by 
motion  for  a  new  trial.1" 

It  is  held  that,  "  if  there  was  proof  pertinent  to  any  issue  on  which 
the  court  ought  to  have  found  facts  which  were  not  found,  the  remedy 
would  be  by  motion  for  a  new  trial,  on  the  ground. that  the  finding  is 
contrary  to  law." 

So  if  the  special  findings  by  the  court  or  by  a  jury  are  not  sustained 
by  the  evidence.0 

That  the  verdict  is  contrary  to  law  can  not  be  assigned  as  error  in 
the  supreme  court.p 

(i)  Bosseker  v.  Cramer,  18  Ind.  44.  (o)  Schmitz   ».    Lauferty,    29    Ind. 

(j)  Robinson     Machine  .Works    v.  400;    The   Montgomery,   etc.,    Gravel 

Chandler,  56  Ind.  575,  583.  Road  Co.  v.  Rock,  41  Ind.  263 ;  The 

(k)  Garstv.  The-State,  68  Ind.  101.  Indianapolis,  etc.,  R.  R.  Co.  v.  Stout, 

(1)  Potts  v.  Felton,  70  Ind.  166.  53  Ind.  143. 

(m)  Lockwood  v.  Dills,  74  Ind.  56.  (p)  Marsh  v.  Terrell,  63  Ind.  363. 

(n)  Ex  parte  Walls,  73  Ind.  95,  110; 
Jones  r.  Baird,  76  Ind.  164. 


598  NEW   TRIAL — VENIRE  DE  NOVO.  [CHAP. 

917.  All  of  the  evidence  must  be  in  the  record.— The  ques- 
tions whether  the  verdict  is  sustained  by  sufficient  evidence  or  is  con- 
trary to  law,  can  only  be  determined  in  the  supreme  court  from  the 
evidence,  together  with  the  law  applicable  thereto.     Therefore,  in  or- 
der to  make  either  of  these  causes  available  on  appeal,  the  record  must 
contain  all  of  the  evidence  given  at  the  trial. q 

Where  the  evidence  is  not  in  the  record  the  supreme  court  will  pre- 
sume in  favor  of  the  verdict.  This  rule  applies  to  special  findings  by 
the  court.1 

7.    NEWLY   DISCOVERED   EVIDENCE. 

918.  What  must  be  shown  under  this  specification. — It 
must  be  shown,  under  this  specification  : 

1.  The  names  of  the  witnesses.8 

2.  The  testimony  expected  from  them. 

3.  That  the  evidence  is  newly  discovered. 

4.  That  due  diligence  was  used  to  procure  it. 

5.  That  it  is  material. 

6.  That  it  is  not  cumulative. 

7.  That  it  is  not  impeaching. 

8.  That  it  will  probably  change  the  result. 

9.  The  affidavit  of  the  witness  must  be  produced.* 
The  motion  must  state  the  grounds  specifically . u  (1) 

919.  That  the  evidence   has  been  discovered   since   the 
trial. — If  the  evidence  was  known  to  the  party  at  the  trial  it  was  his 
duty  to  produce  it  then.     He  is  not  entitled  to  relief  under  this  speci- 
fication unless  the  evidence  was  unknown,  no  matter  hosv  material  it 
may  be.     If  the  evidence  could  not,  for  any  reason,  be  produced  at 
the  trial,  he  must  have  resorted  to  a  motion  for  a  continuance.'     If  he 
has  failed  in  this,  his  right  to  rely  upon  such  evidence  is   thereby 
waived.     It  is  absolutely  necessary,  therefore,  that  it  should  be  shown 
in  support  of  the  motion  that  the  evidence  has  been  discovered  since 
the  trial. w 

This  rule  is  strictly  enforced  by  the  decided  cases.  It  is  held  to  be 
no  ground  for  a  new  trial  that  a  witness  who  refused  to  testify  at  the 

(q)  Vaughan  v.  Ferrall,  57  Ind.182;         (u)  R.  §.  1881, 1  562;  ante,  I  871. 
Buskirk's  Prac.,  p.  240,  and  cases  cited.         (v)  Kosencrants  v.  The  State,  6  Ind. 

(r)  Grabam   v.  The  State,    66  Ind.    407. 
386.  (w)  Lister   v.   Boker,   G    Blkf.  439; 

(s)  Martin  v.  Garner,  40  Ind.  351.        Simpson'  v.  "Wilson,  6  Ind.  474;  Mur- 

(t)  Buskirk's    Prac.,    p.   240;    For-    phy  v.  The  State,  6  Ind.  490;  Moniger 
raster  v.  Guard,  12  Am.  Dec.  141,  143,    v.  The  State,  48  Ind.  383. 
and  authorities  cited  ;  s.  c.,  Breese,  74,        (1)  Form  of   motion  for  new  trial, 

Vol.  3,  p.  432-434 ;  affidavits  in  support 
of  motion,  pp.  435,  436. 


XXI. J  NEW   TRIAL — VENIRE   DE   NOVO.  599 

trial,  on  the  ground  that  it  would  criminate  him,  has  since  consented 
to  testify.1 

So,  where  a  witness  makes  affidavit  that,  upon  his  examination,  he 
had  forgotten  to  testify  to  a  material  fact.y 

920.  Diligence  used  to   procure  the   evidence. — It  is  not 
enough  that  the  evidence  was  not  discovered.     It  must  be  clearly 
shown  that  the  proper  diligence  was  used  to  discover  it  before  the 
trial.2 

It  is  not  sufficient  to  state  generally  that  due  diligence  has  been  used 
to  procure  the  evidence.  The  facts  constituting  the  diligence  must  be 
shown  in  support  of  the  motion.3 

It  has  been  held,  in  some  cases,  that  the  necessity  of  showing  dili- 
gence may  be  avoided  by  a  sufficient  excuse.  Thus,  where  it  was 
shown  that  the  defendant,  in  a  criminal  case,  could  prove  a  material 
fact  by  a  witness  named,  that  he  had  been  in  jail  siuce  the  charge  was 
preferred  against  him,  that  he  had  no  means  or  opportunity  to  prepare 
for  trial  or  employ  counsel,  that  counsel  was  assigned  to  him  when  the 
cause  was  called  for  trial  who  knew  nothing  of  the  circumstances,  ex- 
cept as  they  were  developed  on  the  trial,  and  that  unexpected  evidence 
was  produced  at  the  trial  that  could  be  met  by  the  testimony  of  the 
absent  witness,  it  was  held  that  a  new  trial  should  have  been  granted.*1 

It  is  no  excuse  that  the  witness  was  out  of  the  state  and  could  not 
be  subpoenaed.  If  his  place  of  residence  is  known  or  can,  with  the 
proper  diligence,  be  discovered,  his  deposition  must  be  taken. c 

921.  Evidence    must   be  material. — The  discovered  evidence 
must  be  material  to  the  issues  in  the  cause.d    This  need  not  be  affirma- 

(x)  Lister  v.  Boker,  6  Ind.  439.  v.  Hare,  49  Ind.  268;  Bowman  v.  Clem- 

(y)  Duignan  v.  Wyatt,  3  Blkf.  385;  mer,   50   Ind.    10;    The   Ft.   "Wayne, 

Humphreys  v.  Klick,  49  Ind.  189.  Muncie,  etc.,  R.  R.  Co.   v.  Thalor,  51 

(z)  Deputy  v.  Tobias,  1  Blkf.  311;  Ind.  485;   Bowers  v.  Bowers,  53  Ind. 

Coe  v.  Givan,  1  Blkf.  367;  Doubleday  430;  Lewis  v.  Crow,  69  Ind.  434;  To- 

v.  Makepeace,  4   Blkf.  9;  Robinoe  v.  ney  v.  Toney,    73   Ind.  34;  Arms  v. 

Doe,  6  Blkf.  85;  Mclntire  v.  Young,  6  Beitn;an,  73  Ind.  85. 

Blkf.  496;  Bush  v.  Mahon,  2  Ind.  44;  (a)   Robinoe  v.  Doe,  6  Blkf.  85;  Har- 

Conwell  v.  Anderson,  2  Ind.  122;  Tay-  rington  T\  Witherow,  2  Blkf.  37;  Reno 

lori>.  The  State,  4  Ind.  540;  Simpson  r.  Robertson,  48  Ind.  106;  Rickart  v 

r.  Wilson,  6  Ind.  474;   Murphy  v.  The  Davis,  42  Ind.  164. 

State,  6  Ind.  490 ;  Ruger  r.  Bungan,  10  (b)  Rosencrants  v.  The  State,  6  Ind. 

Ind.  451;    Yater  v.  Mullen,   23  Ind.  407;  Keeley  v.  The  State,  14  Ind.  36. 

562;    Rickart  ?•.   Davis,   42  Ind.  164;  (c)  Conwellv.  Anderson,  2  Ind.  122. 

Reno  v.  Robertson,  48  Ind.  106;  Cook  (d)  Swilt  r.  \Vakeman,  9  Ind.  652; 


600  NEW   TRIAL — VENIRE   DE   NOVO. 

tively  stated  in  the  motion.  The  mere  statement  of  the  evidence  will 
usually  show  whether  or  not  it  is  material.  Where  this  appears  from 
the  evidence  alone,  it  is  sufficient.  But  where  it  does  not  so  appear  on 
its  face,  its  materiality  must  be  shown.  If  the  evidence  shows  upon 
its  face  to  be  immaterial,  a  statement  in  the  motion  or  affidavits  in 
support  thereof,  that  it  is  material,  will  be  disregarded. 

922.  Cumulative  evidence. — It  is  well  established  that  the  dis- 
covery of  evidence  that  is  merely  cumulative  of  that  given  on  the  trial 
is  not  sufficient  ground  for  a  new  trial.6 

"Cumulative  evidence  is  of  the  same  kind,  to  the  same  point. 
Thus,  if  a  fact  is  attempted  to  be  proved  by  the  verbal  admission  of  a 
party,  evidence  of  another  verbal  admission  of  the  same  fact  is  cumu- 
lative ;  but  evidence  of  other  circumstances  tending  to  establish  the 
fact  is  not."' 

The  evidence  of  the  party  is  treated  as  that  of  other  witnesses.  Ac- 
cordingly it  is  held  that,  where  the  party's  own  testimony  was  the  only 
evidence  given  on  a  point,  and  the  discovered  evidence  is  cumulative 
of  his  testimony,  the  new  trial  must  be  denied.8 

923.  Impeaching   evidence. — As   a  rule,   evidence    that   goes 
merely  to  impeach  a  witness  who  has  testified  at  the  trial,  either  by 
proving  bad  character  or  contradictory  statements,  will  not  be  suffi- 
cient to  entitle  a  party  to  a  new  trial.11 

This  rule  can  not  be  regarded  as  universal,  though  the  exceptions 
thereto  are  not  well  defined  by  the  decided  cases.  In  an  early  case  it 

Townsend  0.  The  State,  13  Irid.  357;  v.  Marshall's  Adm'r,  12  Ind/ 609;  Hous- 

Moniger  ».  The   State,  48   Ind.    383;  ton   v.    Bruner,    39   Ind.   376;  Cox   v. 

Raler  v.  The  State,  49  Ind.  507;  Bus-  Harvey,   53   Ind.  174;  Shirel  v.  Bax- 

kirk's  Prac.,  p.  241 ;  Bennett  v.  Holmes,  ter,  71  Ind.  352. 

32  Ind.  108.  (g)  Fox  v.  Reynolds,   24   Ind.  46; 

(e)  Jennings  v.  Loring,  5  Ind.  250;  Atkinson  v.. Martin,  39  Ind.  242. 
Bronson  r.  Ilickman.  10  Ind.  3;  Hum-  (h)  Fleming  v.  The   State,  11   Ind. 
phries   v.  Marshall's   Adm'r,    12   Ind.  234;   Bland  ?>..The  State,  2  Ind.  608; 
609;    Fox    v.    Reynolds,    24    Ind.    46;  Keck  v.  Umphries,  4  Ind.  492;  Taylor 
Houston  v.  Bruner,  39  Ind.  376;  At-  v.  The  State,  4  Ind.  540;  O'Dea  v.  The 
kinson  v.  Martin,  39  Ind.  242;  Zouker  State,   57   Ind.    31;    Hatterson    v.  The 
v.  Wiest,  42  Ind.  169  ;   Winsett  v.  The  State,  63  Ind.  531 ;  Evans  v.  The  State, 
State,  57  Ind.  26 ;  Dodds  v.  Vannoy,  61  67  Ind.  68;  The  State  v.  Clark,  16  Ind. 
Ind.   89;   Batterson   v.   The   State,  63  97;   Mclntire  v.  Young,  6  Blkf,  496; 
Ind.  531;    Shirel   v.    Baxter,    71    Ind.  Elliott  v.  Adams,  8  Blkf,  103 ;  Jackson 
352;  Williams  v.  Potter,  72  Ind.  354;  v.  Sharpe's  Adm'r, 29  Ind.  167;  Martin 
The  State  v.  Clark,  16  Ind.  97.  v.  Garner,  40  Ind.  351  ;  Tholke  <•.  The 

(f )  1  Greenleaf's  Ev.,  §2;  Humphries  State,  50  Ind.  355. 


XXI. J  XEW   TRIAL — VENIRE    DE   XOVO.  601 

was  said:  "Unless  the  impeaching  evidence  is  strong,  and  pointed 
directly  to  the  merits,  so  as  to  raise  a  violent  presumption  of  its  being 
successful  with  the  jury,  the  verdict  should  not  be  disturbed."  ' 

It  is  intimated,  though  not  decided,  in  a  later  case,  that  where  the 
evidence  goes  to  impeach  a  party  the  rule  should  be  different.-" 

Again,  it  is  said  that  "  there  may  be  some  exceptions  to  this  general 
rule."k 

A  case  may  arise  in  practice  where  the  impeaching  evidence  will 
have  such  weight  as  to  authorize  a  new  trial,  but  none  such  have  been 
found,  and  no  exceptions  are  stated  in  the  decided  cases. 

The  admissions  made  by  the  relatrix  in  a  bastardy  proceeding  can 
only  be  proved  as  impeaching  statements.  She  is  not  a  party,  and  her 
dt-clarations  can  not  be  proved  as  the  admissions  of  a  party.1 

924.  Evidence  must  probably  produce  a  different  result. 
— The  evidence  discovered,  to  authorize  a  new  trial,  must  be  of  such 
importance  that  it  will  probably  produce  a  different  result  on  a  second 
trial.10 

It  must  appear  that  the  evidence  can  probably  be  produced." 

925.  Affidavits  of  party  and  witness  necessary. — The  mo- 
tion must  not  only  be  supported  by  the  affidavit  of  the  party,  but  the 
affidavit  of  the  witness  that  he  will  testify  to  the  facts  set  out  in  the 
motion  must  be  produced,   or  its  absence  must  be  satisfactorily  ac- 
counted for.°(l) 

It  is  not  a  sufficient  excuse  for  not  producing  the  affidavit  of  the 
witness  that  he  is  interested  adversely  to  the  party  making  the  motion, 
nor  that  he  refuses  to  make  the  affidavit,  as  the  court,  upon  a  showing 
of  the  facts,  will  compel  him  to  make  affidavit  of  the  matters  within 
his  knowledge.1'  It  was  held  a  sufficient  excuse  that  the  witness  was 

(i)  Taylor  v.  The  State,  4  Ind.  540.  State,  f  3  Ind.  278;  O'Dea  v.  The  State, 

( j)  O'Dea  v.  The  State,  57  Ind.  31 .  57  Ind.  31. 

(k)  Evans  v.  The  State.  07  Ind.  68;  (n)   Bissot  v.  The  State,  53  Ind.  408. 

Humphreys  r.  The  State.  75  Ind.  469.  (o)  Priddy  v.  Dodd,  4  Ind.  84;  Gib- 

(1)  Tholke  r.  The  State,  50  Ind.  355.  son  v.  The  State,  9  Ind.  264;  Beard  v. 

(m)  Hull  t-.  Kirkpatru-k,  4  Ind.  637;  The    First    Presbyterian    Church,   10 

Simpson  t-.  Wilson,  6  Ind.  474;    Bron-  Ind.   568;     Cummins    v.    Walden,    4 

s.-n   v.   Hickman,    10   Ind.  3;    Cox  v.  Blkf.  307 ;   McQueen  r.  Stewart,  7  Ind. 

H'ltchings,  21  Ind.  219;    Freeman  v.  535;    Brandendistle    v.   "Wilhelm,    32 

Bowman,  25  Ind.  236;  Humphreys  v.  Ind.  496;  Shipman   v.  The  State,  38 

Klick,  49   Ind.  189;    Rainey   v.   The  Ind.  549;  Hill  v.  Roach,  72  Ind.  57. 

(p)  Rater  v.  The  State,  49  Ind.  507. 

(1)  Form  of  affidavits,  Vol.  3,  p.  435,  436. 


602  NEW   TRIAL — VENIRE   DE   NOVO.  [CHAP. 

out  of  the  state,  and  the  defendant  applying  for  a  new  trial  was  in 
jail,  and  without  means  to  procure  the  affidavit. q 

It  has  been  held  that  where  the  motion  was  supported  by  the  affidavits 
of  both  the  party  and  the  witness,  but  the  party  did  not  show  in  his 
affidavit  that  he  believed  the  discovered  evidence  to  be  true,  and  it 
was  absolutely  inconsistent  with,  his  own  testimony  at  the  trial,  the 
new  trial  was  properly  refused/ 

The  party's  affidavit  must  give  the  name  of  the  witness,  or  show 
that  the  name  is  unknown.3 

926.  Evidence  must  be  in  the  record. — The  rule  that  the 
right  to  a  new  trial  depends  in  part  upon  the  question  whether  it 
would  change  the  result  on  the  second  trial  or  not,  can  only  be  deter- 
mined in  the  supreme  court  by  an  examination  of  the  evidence  given 
on  the  former  trial,  as  well  as  that  discovered  since.     It  is  absolutely 
necessary,  therefore,  to  present  the  question  under  this  specification, 
on  appeal,  that  all  of  the  evidence  should  be  in  the  record.1 

The  evidence  need  not  be  set  out  in  the  motion  or  affidavits,  as  in 
case  of  a  complaint  for  a  new  trial  after  the  term.  Being  a  part  of 
the  original  action,  the  trial  court  must  know  what  evidence  was  given 
on  the  trial.  But,  on  appeal,  the  evidence  given  at  the  trial  and  that 
discovered  must  anpfjn-  i:i  a  bill  of  exceptions. 

8.    ERROli   O:'   LAW    OCCURRING   AT   THE   TRIAL. 

927.  Generally.  — This   specification   relates   exclusively  to   such 
errors  as  may  he  committed  at  the  trial.     When  the  trial  may  be  re- 
garded as  commenced  is  a  question  of  some  doubt.     For  some  pur- 
poses, the  trial  is  held  to  be  commenced  with  the  swearing  of  the  jury," 
and  to  continue  until  the  motion  for  a  new  trial  is  disposed  of.v 

There  are  other  matters  more  nearly  connected  with  the  trial  about 
which  there  is  some  question. 

For  example,  questions  arising  upon  the  right  to  a  trial  by  jury  ;  in 
the  selection  of  the  jury,  questions  of  the  competency  of  jurors,  the 
right  to  challenge,  and  the  like.  These  questions,  although  nearly 

(q)  Gibson  v.  The  State,  9  Ind.  264.  den  v.  Wade,  23  Tnd.  471 ;  Larrimore 

(r)  Bennett  v.  Holmes,  32  Ind.  108;  v.  Williams,  30  Ind.  18;  Sanders  P. 

Ritchey  r.  West,  23  111.  385.  Loy,  45  Ind.  229;  Jackson  v.  Fowler, 

(s)  Martin  v.  Garver,  40  Ind.  351.  63  Ind.  85;  Clare  ».  The  State,  68  Ind 

(t)  Cones  v.  Ryman,  9  Ind.  277;  17;  Buskirk's  Prac..241. 

O'Brian   v.  The   State,    14    Ind.   469;         (u)  Glen  v.  Clore,  42  Ind.  60;  Jenks 

Walpole   v.  Atkinson,    18    Ind.   434;  v.  The  State,  39  Ind.  1. 

Ruddiek  v.  Ruddiek,  21  Ind.  163;  Cow-         (v)  Jenks  v.  The  State,  39  Ind.  1. 


XXI.]  NEW   TRIAL— VENIRE   DE    NOVO.  603 

connected  with,  can  not  be  regarded  as  a  part  of  the  trial,  but  rather 
as  settling  who  the  triers  shall  be.w 

The  question  is  not  one  of  practical  importance,  where  it  is  certain 
that  the  error  complained  of  is  within  any  of  the  statutory  causes.  It 
is  not  necessary  to  designate  in  the  motion  whether  the  error  is  one 
occurring  at  or  before  the  trial. 

It  is  only  necessary  to  state  specifically  what  the  error  is,x  and  if  ii 
falls  within  either  specification  it  is  sufficient.  This  is  not  true  whert 
the  cause  must  be  assigned  in  the  language  of  the  statute,  as,  for  ex- 
ample, excessive  damages.  Under  this  specification  the  cause  must  bf 
specifically  assigned,  and  it  is  not  necessary  to  show  that  it  is  "  erroi 
of  law  occurring  at  the  trial."  If  the  error  should  fall  within  the  first 
specification,  "irregularity  in  the  proceedings  of  the  court,"  etc.,  it 
would  be  equally  available. 

928.  Causes  enumerated. — The  following  are  some  of  the  errors 
that  have  been  held  to  be  causes  for  a  new  trial,  and  are  within  this 
specification  : 

1.  In  denying  the  right  to  open  and  close. -v 

2.  Rulings  as  to  the  competency  of  jurors.2 

3.  Entering  judgment  against  a  party  who  has  not  appeared,  with- 
out taking  a  default.4 

4.  Error  in  the  admission  or  exclusion  of  evidence. b 

5.  Error  in  giving,  refusing,  or  modifying  instructions.0 

6.  Submitting  or  refusing  to  submit  interrogatories  to  the  jury.d 

7.  Allowing  the  jury  to  take  out  evidence.6 

8.  Objections  to  the  form  of  the  verdict. f 

9.  Mistake  in  special  finding.8 

929.  Admission  or  exclusion  of  evidence. — One  of  the  causes 
for  a  new  trial  that  arises  most  frequently  under  the  eighth  specifica- 
tion, is  error  in  the  admission  or  exclusion  of  evidence.     Like  most 

(w)  But  see  Iglehart's  PI.  and  Pr.  (b)  Post,  \  929. 

243,  §  43.  (c)  Higham  v.  Warner,  69  Ind.  549; 

(x)  Taylor  v.  Skelkett,  66  Ind.  297.  post,  \  930. 

(y)  Abshire  r.  The   State,   52  Ind.  (d)  White  v,  Garretson,  34  Ind.  514; 

99;  White  v.  Carlton,  52  Ind.  371.  Nichols   v.   The   State,    65   Ind.   512; 

(z)  The  Lafayette  Plank  Road  Co.  Higham  v.  Warner,  69  Ind.  549. 

v.  The  New  Albany,  etc.,  K.  K.  Co.,  13  (e)  Nichols   v.   The   State,   65   Ind. 

Ind.   90;  Pickens   v.   Hobbs,   42  Ind.  512. 

270;  Hudspeth  v.  Herston,64  Ind.  133;  (f )  Weatherby  v.  Higgins,  6  Ind.  73. 

Lamphier  v.  The  State,  70  Ind.  317.  (g)  Dehority  v.  Nelson,  56  Ind.  414. 

(a)  Smith  v.  Foster,  59  Ind.  595. 


6(M  NEW   TRIAL — VENFRE   DE   NOVO.  [CHAP. 

other  causes,  tiie  ruling  must  appear  to  affect  the  substantial  rights  of 
the  party.1' 

The  motion  must  point  out  the  evidence  admitted  or  excluded  with 
such  certainty  as  to  call  the  attention  of  the  court  and  adverse  party 
thereto,  and  sufficiently  identify  the  same.1 

The  evidence  must  be  in  the  record,  on  appeal,  by  bill  of  excep- 
tions.-' 

The  objection  to  the  evidence  and  the  exception  thereto  must  be 
made  and  taken  at  the  time.k 

Time  may  be  given  ill  which  to  prepare  and  file  a  bill  of  exceptions, 
but  when  filed  it  must  show  that  the  exception  was  taken  at  the  time 
tlie  evidence  ivcus  offered.  It  is  not  sufficient  to  except  in  the  bill  of  ex- 
ceptions, as  is  frequently  done,  by  saying  "toivhich  the  plaintiff  excepts." 
Such  an  exception  applies  to  the  time  the  bill  is  signed,  and  is  too 
late.  It  must  show  that  the  plaintiff  at  the  time  excepted  and  now  ex- 
cepts.1 

Under  the  code  of  1852,  where  an  exception  was  taken  to  the  ad- 
mission or  exclusion  of  evidence  at  one  term,  and  the  motion  for  a  new 
trial  ruled  upon  at  a  subsequent  one,  the  exception  taken  to  the  evi- 
dence must  have  been  reduced  to  writing,  or  time  given,  at  the  term 
at  which  the  exception  was  taken.™ 

But  the  present  code  changes  the  law  in  this  respect  by  providing: 
"  That  if  a  motion  for  a  new  trial  shall  be  filed  in  a  cause  in  which 
such  decision  so  excepted  to  is  assigned  as  a  reason  for  a  new  trial, 
such  motion  shall  carry  such  decision  and  exception  forward  to  the 
time  of  ruling  on  such  motion,  and  time  may  be  then  given  by  the 
court  within  which  to  reduce  such  exception  to  writing."" 

This  provision  must  not  be  understood  as  changing  the  time  when 
the  exception  must  be  taken.  The  exception  must  still  be  taken  at  the 
time  the  evidence  is  offered,  and  the  bill  of  exceptions  must  so  show ; 
but  the  leave  to  reduce  the  exception  to  writing  may  now  be  given  at 
a  subsequent  term,  if  the  motion  for  a  new  trial  be  then  ruled  upon. 

It  has  been  held  sufficient,  if  the  bill  of  exceptions  shows  that  the 

(h)  Gebhurt  c.  Burkett,  57  Ind.  878;  273;  Dickerson  ?;.  Turner,  15  Ind.  4; 

Carter  v.  Pomeroy,  30  Ind.  438.  McKinney  r.    Springer,    6    Ind.   453; 

(i)  Ante,  §869,  and  authorities  cited.  Stump  v.  Fraley,  7  Ind.  679;    Wilson 

(j)  Ante, §870,  and  authorities  cited,  v.  Wolfen,   8   Ind.   398;  Jolly  v.  The 

(k)  Jonec   v.   Van    Fatten,   3    Ind.  Terre  Haute  Drawbridge  Co ,  9   Ind. 

107;    Crabs    v.    Mickle,   5    Ind.    145;  41w;    Buskirk's   Prac.    144,    and    cases 

Darnell  v.  Hazlett,  11  Ind.  494.  cited. 

(1)  R.  S.  1881,  §626;  Coan  ».  Grimes,         (m)  Rhyan  v.  Dunnigan,  76Ind.  178. 

63    Ind.  LM  ;  (Jriffin    ,-.   Pate,  63    Ind.         (n)  R.  S.  1881,  g  tJL'6. 


XXI.]  NEW   TRIAL — VEXIRE   DE   NOVO.  G05 

exceptitjn  was  taken  "  at  the  proper  time,"  on  the  ground  that  it  is 
equivalent  to  a  statement  that  it  was  taken  "  at  the  time."  ° 

The  court  may  extend  the  time  in  which  to  reduce  an  exception  to 
writing,  but  can  not  allow  time  in  which  to  take  such  exception. p 

When  the  error  complained  of  is  in  the  admission  of  evidence,  the 
grounds  of  objection  thereto  must  be  shown  in  the  bill  of  exceptions, 
and  it  must  appear  that  the  objections  were  made  at  the  time.q  The 
objection  must  be  specifically  stated  at  the  time.  A  general  objection 
that  the  evidence  is  incompetent  is  insufficient.1" 

Where  the  evidence  is  excluded,  the  grounds  of  objection  need  not 
be  shown.9 

There  are  some  cases  that  seem  to  recognize  a  different  rule,  but  it  is 
not  directly  decided.* 

The  bill  of  exceptions  must  show  what  was  expected  to  be  proved 
by  the  witness,  and  that  it  was  stated  to  the  court  at  the  time.  It  is 
not  sufficient  to  show  that  a  certain  question  was  asked,  and,  upon  ob- 
jection, the  witness  was  not  allowed  to  answer.  It  must  be  shown 
what  answer  was  expected,  as  the  answer  of  the  witness,  if  allowed, 
might  have  been  unimportant  or  immaterial,  or  he  may  not  have  been 
able  to  answer  the  question."  . 

Where  immaterial  evidence  has  been  allowed  to  go  to  the  jury,  it 

(o)  Oandall  v.  The  First  National  (r)  Stanley  v.  Sutherland,  o^Ind. 

Bank  of  Auburn,  61  Ind.  349.  339,  352 ;  Betson  v.  The  State,  47  Ind. 

(p)  Coan  v.  Grimes,  63  Ind.  21.  54. 

(q)  Russell  v.  Branham,  8  Blkf.  277  ;  (s)  Abshire  r.  Williams,  76  Ind.  97. 

Sinclair  v.  Roush,  14  Ind.  450;  Denny  (t)  The  O.  &  M.  R.  W.  Co.  v.  Row- 

v.  The  North-western  Christian   Uni-  land,  51  Ind.  285;  The  Baltimore,  etc., 

versity,  16  Ind.  220;  Swails  v.  Cover-  R.  R.  Co.  v.  Lansing,  52  Ind.  229. 

dill,  21  Ind.  271;    Mugg  v.  Graves,  22  (u)  The  Toledo,  etc.,   R.  W.  Co    >-. 

Ind.  236;   Bli^singame  v.  Blasingame,  Goddard.  25  Ind.  185;  Lewis  v.  Lewi.*, 

24  Ind.  86;  Ammerman  r.  Crosby,  26  30  Ind.  257;  The  Baltimore,  etc.,  It. 

Ind.  451;  Schenck  v.  Butsch,  32  Ind.  R.  Co.  v.  Lansing,  52  Ind.  229;  Adams 

338;    Clem   v.   Martin,   34   Ind.   341;  v.   Cosby,  48  Ind.  153;    Watt   v.   De 

Harvey   v.  The   State,   40   Ind.   516;  Haven,  55  Ind.  128;  Mitchell  v.  Cham- 

Leffler  r.  Rice,  44  Ind.  100;  Trogden  bers,  55  Ind.  289;  The  O  &  M.  R.  W. 

?•.  Deckard,  45   Ind.  572;   Blizzard  r.  Co.  r.  Rowland,  51  Ind.  285 ;  Tedrowe 

Hays,    46   Ind.    166;     Betson    v.   The  v.  Esher,   56  Ind.  443;  Robinson   Ma 

State.  47  Ind.  54;  Smith  r.  Worland,  chine  Works  r.  Chandler,  56  Ind.  575: 

50  Ind.  360;    Holesapple  v.  Fawbush,  Ferguson  v.  Hi rsch,  54  Ind.  337  ;  St«r.- 

51  Ind. 494;  The  First  National  Bank  ley  v.  Sutherland,  54   Ind.  339;    The 
of  Cambridge  City  v.  Colter,  61  Ind.  First  Nat.  Bank  of  Cambridge  City  v. 
153;   Abshire  r.  Williams,  76  Ind.  97  ;  Colter,  61  Ind.  153. 

Clay  r.  Clark,  76  Ind.  161. 


606  NEW    TRIAL — VENIRE   DE   NOVO.  [CHAP. 

will  be  presumed,  on  appeal,  to  have  worked  an  injury,  unless  the 
contrary  clearly  appears/ 

In  an  earlier  case,  it  was  held  that  it  must  affirmatively  appear  that 
the  evidence  might  have  prejudiced  the  rights  of  the  party. w 

It  is  held  that  a  judgment  ought  not  to  be  reversed  on  "  evidence 
which  is  merely  irrelevant."  x 

Where  evidence  has  been  excluded,  but  before  the  trial  the  court 
reverses  the  ruling,  and  informs  the  party  that  the  evidence  will  be 
admitted,  there  is  no  available  error.y  So,  where  the  court  has  ad*- 
mitted  improper  evidence,  but  the  jury  are  instructed  to  disregard  it.z 

930.  Giving  or  refusing  to  give  instructions. — The  various 
questions  growing  out  of  the  instructions  have  been  fully  considered  in 
the  chapter  on  Trials.* 

Any  error  committed  in  giving,  refusing,  or  modifying  instructions 
must  be  assigned  as  a  cause  for  a  new  trial,  and  can  not  be  assigned  as 
error  in  the  supreme  court. b  The  mistake  of  assigning  such  causes, 
independently,  as  error,  is  quite  common. 

Numerous  authorities  might  be  cited  on  this  point,  holding  that  such 
an  assignment  raises  no  question ;  but  as  the  cases  have  uniformly  held 
the  same  way,  it  is  unnecessary. 

The  degree  of  certainty  required  in  assigning  this  cause  in  the  mo- 
tion for  a  new 'trial  has  been  considered, c  as  well  as  the  proper  manner 
of  excepting  and  reserving,  the  exception  to  the  action  of  the  court 
thereon.d 

931.  Questions  of  law  reserved. — The  statute  provides  for  re- 
serving questions  of  law  on  the  trial  of  the  cause  for  the  decision  of 
the  supreme  court.6 

Where  this  is  done,  errors  of  law  occurring  at  the  trial  must  be  pre- 
sented by  a  motion  for  a  new  trial,  as  in  other  cases. f 

(v)  Morgan   v.  The   State.  31    Ind.  v.  Kepler,  16   Ind.  290;  Wishmier  v. 

193,   201;  The   Bellefontaine,   etc.,  K.  Bebymer,  30  Ind.  102;  Buskirk's  Prac. 

W.  Co.  v.  Hunter,  33  Ind.  335;  Thomp-  289. 

son    /•.  Wilson,    34   Ind.   94;  King  v.  (a)  Ante,  §  781  et  seq. 

The  Enterprise  Insurance  Co.,  45  Ind.  (b)  Hampson  v.  Fall,  64  Ind.  382;. 

43;    Buskirk's  Prac.  285.  Eckleman  v.  Miller,  57  Ind.  88;  Rea- 

(w)  McDermitt  v.  Hubanks,  25  Ind.  gun  v.  Hadley,  57  Ind.  509;  Freeze  v. 

232.  De  Puy,  57  Ind.  188. 

(x)  Dawson    v.   Hemphill,   50    Ind.  (c)  Ante,  §869. 

422.  (d)   Ante,  §§  795,  796. 

(y)  Gehhart  v.  Burkett,  57  Ind.  378.  (e)  K.  S.  1881,  §  630. 

(z)  Gebhart  v.  Burkett,  57  Ind.  378;  (f )  Garver  v.  Daubenspeck,  22  Ind. 

Joy  v.  The  State,  14  Ind.  139  ;  Zehner  238  ;  Starner  v.  The  btate,  61  Ind.  360;. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  607 

< 

The  error  complained  of  must  be  pointed  out  with  reasonable  cer- 
tainty in  the  court  below.  It  is  held  that  "it  must  be  so  presented 
below  that  that  court  could  cure  or  avoid  the  error  complained  of  by 
doing  what  the  party  moves  it  to  do."  g 

If  the  error  is  ground  for  a  new  trial,  it  must  be  pointed  out  with 
the  same  certainty  required  in  other  cases. 

ERRORS   NOT   GROUND   FOR   NEW   TRIAL. 

932.  Enumerated. — The  mistake  of  assigning,  as  a  reason  for  a 
new  trial,  errors  that  can  only  be  presented  on  appeal  by  an  assignment 
of  error,  is  one  that  is  frequently  made. 

Unless  the  error  is  one  falling  within  some  of  the  statutory  grounds 
for  a  new  trial  nothing  is  gained  by  assigning  it  as  a  reason  therefor. 
To  make  such  errors  available  exception  must  be  taken,  in  the  court 
below,  at  the  time,  and  the  ruling  presented  to  the  supreme  court  by 
assignment  of  error. 

For  the  purpose  of  easy  reference,  some  of  the  errors  that  have  been 
held  not  to  be  ground  for  a  new  trial  are  here  set  out.  No  doubt  some 
of  them  will  be  overlooked : 

1.  Rulings  on  demurrers  to,  or  the  sufficiency  of  pleadings.11 

2.  On  motion  to  strike  out  pleadings.1 

3.  On  motion  for  judgment  on  special  findings.j 

4.  That  the  court  erred  in  its  conclusions  of  law  on  special  findings 
of  facts. k 

5.  That  the  special  findings  are  inconsistent  with  the  general  verdict 
or  with  eacli  other.1     In  Brickley  v.  Weghorn  there  is  a  mistake  in  the 
syllabus  that  makes  the  decision  appear  to  be  the  other  way. 

6.  Sufficiency  of  affidavit  in  attachment.1" 

Rousseau  v.  Corey,  62  Ind.  250;   Bus-  (j)  Horn  v.  Eberhart,  17  Ind.  118. 

kirk's  Prac.  71.     But  see  on  this  point  (k)  The     City     of     Logansport    v. 

The  State  v.  Swarts,  9  Ind.  221.  Wright,  25  Ind.  512;  Peden's   Adm'r 

(g)  Love     v.    Carpenter,    30    Ind.  v.  King,  30  Ind.  181 ;  Eoberts  v.  Smith, 

284.  34  Ind.  550. 

(h)  Milliken  v.  Ham,  36  Ind.  166;  (1)  Adamson  v.  Rose,  30  Ind.  380; 

Denman   r.   MoMahin,    37   Ind.   241;  Stockton    v.   Stockton,   40    Ind.   225; 

Daubenspeck  v.  Daubenspeck,  44  Ind.  Tritlipo   v.   Lacy,   55   Ind.   287  ;  The 

320;  Beeson  W.Howard,  44  Ind.  413;  Fishback,  etc..  Gravel  Road  Co.  v.  Wil- 

Sim  v.  Hurst,  44  Ind.  579.  son,  31   Ind.  371 ;  Grand  Rapids,  etc., 

(i)  Fleming  v.  Dorst,  18  Ind.  493;  R.  R.  Co.  v.  Horn,  41  Ind.  479;  Brick- 

Milliken  v.  Ham,  36  Ind.  166;  Shafer  ley  v.  Weghorn,  71  Ind    497;  Byram 

v.    Bronenberg,   42    Ind.   89;    Sim   v.  v.  Galbraith,  75  Ind.  134. 

Hurst,  44  Ind.  579.  (m)  McKee  v.  Anderson,  35  Ind.  17 


608  NEW   TRIAL — VENIRE   DK   NOVO.  [CHAP. 

• 

7.  Error  m  form  of  judgment." 

8.  Ruling  on  interrogatories  to  party.0 

9.  Error  in  entering  judgment. p 

10.  Ruling  on  motion  to  dismiss  the  action. q 

11.  On  motion  to  set  off  one  judgment  against  another/ 

12.  In  an  agreed  case.3     It  was  held  otherwise  in  an  earlier  case.'     It 
is  held  that  where  there  is  no  affidavit,  as  required  by  the  statute,  but 
simply  an  agreement  as  to  the  facts,  a  new  trial  is  necessary."     Theiv 
is  a  later  case  seemingly  in  conflict  with  this  ruling,  but  the  que-tiou  is 
disposed  of  in  one  sentence  of  an  opinion  that  was  evidently  not  well 
considered. v     It  is  believed  the  earlier  case  states  the  rule  correctly. 

13.  The  refusal  to  allow  a  defendant  a  separate  trial  in  a  criminal 
cause. w 

14.  An  omission  in  the  verdict.1 

15.  Motion  to  remand  cause  to  justice  of  the  peace. y 

16.  Rulings  on  objections  filed  to  report  of  commissioners  in  parti 
tion  proceedings.2 

HOW    MOTION    FOR    NEW   TRIAL   WAIVED. 

933.  By  moving  in  arrest  of  judgment.— We  have  seen  that 
a  motion  for  a  new  trial  may  be  made  after  judgment.  This  can  not 
be  done  where  there  has  been  a  motion  in  arrest  of  judgment.  By 
moving  in  arrest  a  motion  for  a  new  trial  is  waived." 

(n)  Beeson  v.  Howard,  44  Ind.  413.  (x)  Bell  v.  The  State.  42  Ind.  335: 

(o)  Reed  v.   Spayde,   50    Ind.   394;  post,  \\  970,  071. 

ante,  §  882.  (y)  Tibbetts   ?-.   O'Connell,  66   Ind. 

(p)  Johnson  v.  Vutrick,  14  Ind.  216.  171. 

(q)   Bray  v.  Black,  57  Ind.  417 ;  Ty-  (z)  Clark    v.   Stephenson,    73    Ind. 

ler  v.  Bowlus,  54  Ind.  333;  Vawter  v.  489. 

(iilliland,  55  Ind.  278.  (a)   Mason  ?-.  Palmerton,  2  Ind.  117; 

(r)  McAlister  v.  Willey,  60  Ind.  195.  Rogers  v.  Maxwell,  4  Ind.  243;   Bep- 

(s)  Fisher   v.  Purdue,  48  Ind.  323;  ley  »>.  The  State,  4  Ind.  264;  Sherry  v. 

The  State  v.  The  Board,  etc.,  of  New-  Ewell,  4  Ind.  652;   Anthony  v.  Lewis, 

ton  county,  66  Ind.  216.  8  Ind.  3o9;  Hord  v.  The  Corporation 

(t)  McDonald    e.    Strader,    10    Ind.  of  Noblesville,  6  Ind.  55;  Van  Pelt  v. 

171.  Corwine,    6   Ind.    363;    McKinnoy    r. 

(u)  Manchester  v.    Dodge,    57    Ind.  Springer,  6  Ind.  453;  Doe  v.  Clark,  6 

684.  Ind.  466;  The  Marion,  etc.,  R.  R.  Co. 

(v)  Martin  w,  Martin,  74  Ind.  207.  v.  Lomax,  7  Ind.  400;  Bates  v.  Rei*- 

(w)  Trisler   v.   The   State,   39  Ind  kenhiHH7.fr,  0  Ind.  178;  Smith?'  For- 

473.  ter.  5  li  -i.  429. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  609 

If  the  cause  for  a  new  trial  is  discovered  after  the  motion  m  arrest 
it  is  not  waived. b 

934.  By  failing  to  except  at  the  time. — When  the  new  trial  is 
asked  on  the  ground  of  emmeous  rulings  or  orders  of  the  court  they 
must  be  excepted  to  at  the  time  or  they  are  waived.0 

The  failure  to  except  at  the  proper  time  can  not  be  remedied  by  a 
motion  for  a  new  trial.  There  must  be  both  an  exception  at  the  time 
and  a  motion  for  a  new  trial,  to  present  the  question.  By  failing  to 
except,  the  right  to  move  for  a  new  trial  for  such  cause  is  waived. 

This  rule  does  not  apply  to  such  causes  as  excessive  damages,  ver- 
dict not  sustained  by  sufficient  evidence,  and  the  like,  where  the  first 
opportunity  to  present  the  question  is  upon  filing  the  motion.  . 

935.  Not  waived   by  motion  for   a  venire  de  novo. — By 
moving  for  a  venire  de  novo  a  party  does  not  waive  his  right  to  move 
for  a  new  trial.     The  motion  for  a  new  venire  should  precede  the  mo- 
tion for  a  new  trial. d 

936.  Nor  by  motion  for  judgment  on  special  findings. — A 
motion  for  judgment  on  the  special  findings  of  a  jury  in  answer  to  in- 
terrogatories does  not  waive  the  motion  for  a  new  trial." 

Nor  the  fact  that  special  findings  are  made  at  the  request  of  a 
party.f 

Nor  by  demurring  to  the  evidence.5 

But  the  right  to  move  for  a  new  trial  where  there  is  a  demurrer  to 
the  evidence  is  confined  to  the  assessment  of  damages.  Objections  to 
the  admissibility  or  exclusion  of  evidence  are  waived  by  the  demurrer.1' 

By  excepting  to  the  conclusions  of  law  on  the  special  findings  of  the 
court,  a  motion  for  a  new  trial  is  not  waived.' 

ERROR   IN   GRANTING   OR   OVERRULING    THE    MOTION. 

937.  New  trial  granted. — Where  a  new  trial  is  granted  the  ac- 

(b)  Mason  v.  Palmerston,2  Ind.  117;  (f)  Nichols   v.   The   State,   65   Ind. 
Billiard  New  Trials,  2d  ed.  37,  §  28.  512. 

(c)  Ante,  §929;  post.  §  939.  (g)  Strough   v.  Gear,  48   Ind.  100; 

(d)  Jenkins    v.    Parkhill,    25    Ind.  Lindley  v.  Kelley,  42  Ind.  294. 

473.  (h)  Ante,  §  550;  Miller   v.  Porter, 

(e)  The  Indianapolis,  etc.,  R.  R.  Co.     71  Ind.  521. 

r.  McCaffrey,  62  Ind.  552.  (i)  Ante,  §810;  Robinson  v.  Snyder, 

74  Ind.  110. 
39 


610  NEW   TRIAL — VENIRE   DE   XOVO.  [CHAP. 

tion  of  the  court  will  not  be  disturbed,  except  where  a  clear  abuse  of 
discretion  is  shown  .J 

But  where  the  new  trial  is  granted  upon  insufficient  grounds,  and  it 
clearly  appears  that  manifest  injustice  has  been  done  thereby,  the 
cause  will  be  reversed. k 

938.  New  trial  refused. — The  questions  arising  on  the  overruling 
of  a  motion  for  a  new  trial  have  been  sufficiently  considered  in  treating 
of  the  several  causes  for  a  new  trial.     The  rule  is  not  as  strict  on  ap- 
peal as  it  is   where  the  motion  has  been  sustained  and   a  new  trial 
granted.     But  in  either  case,  as  a  rule,  it  must  appear  that  an  injury 
has  been  done  the  complaining  party.     If  the  correct  result  has  been 
reached,  and  a  second  trial  will  not  benefit  the  party,  the  action  of  the 
lower  court  will  be  sustained. 

939.  Exception  must  be  taken  at  the  time. — I  have  shown 
that  the  ruling  of  the  court  assigned  as  a  cause  for  a  new  trial  must 
be  excepted  to  at  the  time.1     Such  exceptions  avail  the  party  nothing 
unless  there  is  also  an  exception  taken  to  the  ruling  on  the  motion  for 
a  new  trial,  and  this  exception  must  be  taken  at  the  time  the  motion 
is  ruled  upon.     The  court  has  no  power  to  extend  the  time.m 

When  the  motion  is  properly  made  and  exception  taken  to  the  rul- 
ing thereon,  if  overruled,  all  of  the  reasons  assigned  therein  are  pre- 
sented in  the  supreme  court  by  the  one  assignment  that  "  the  court 
erred  in  overriding  the  motion  for  a  new  trial."  It  is  not  only  unnec- 
essary, but  improper,  to  assign  any  of  such  causes  as  error.  The  only 
way  by  which  the  question  can  be  presented  is  by  assigning  error  on 
the  ruling  on  the  motion.11 

It  will  be  seen  by  these  authorities  that  five  things  are  necessary  to 
present  any  question  in  the  supreme  court,  on  errors  that  are  made 
grounds  for  a  new  trial. 

1.  The  ruling  must  be  excepted  to  at  the  time. 

2.  There  must  be  a  motion  for  a  new  trial  specifying  the  cause. 

3.  There  must  be  an  exception  to  the  ruling  on  the  motion. 

(j)  Powell   v.  Grimes,    8   Ind.  25'2;-  (1)  Ante,  §3  929,  934. 

Cronk   v.   Cole,    10  Ind.  485;  Hill   v.  (m)  Coan   v.   Grimes,   63   Ind.   21; 

Goode,    18  Ind.  207;  Leary  v.  Ebert,  ante,  §  929. 

72   Ind.   418;  Leppar  v.    Enderton,  9  (n)  The  Bellefontaine  E.  K.  Co.  v. 

Ind.  353;  Bust  v.  Conn,  12  Ind.  257;  Reed,  33  Ind.  476  ;  Caldwell  v.  Asbury, 

Booker  v.  Parsley,  72  Ind.  497;  Houk  29  Ind.  451;    Herrick  v.  Bunting,  29 

v.  Deitz,  3  Ind.  385.  Ind.   467;    Cole    v.    Burriss,  38   Ind. 

(k)  Jones  v.  Cooprider,  1  Blkf.  47;  168. 
Learv  "•  Ebert,  72  Ind.  418. 


XXI.]  NEW   TRIAL — VENIRE  DE  NOVO.  611 

4.  There  must  be  a  bill  of  exceptions  showing  the  existence  of  the 
cause  and  the  exception  thereto  at  the  time. 

5.  There  must  be  an  assignment  of  error  in  the  supreme  court  that 
the  court  below  erred  in  overruling  the  motion  for  a  new  trial. 

All  of  these  are  absolutely  necessary  to  present  any  question  on 
appeal. 

940.  When  appeal   taken  from  ruling  on   the   motion. — 
Whether  the  motion  is  sustained  or  overruled  an  appeal  can  not  be 
taken  until  there  is  a  final  judgment.     Where  a  new  trial  is  granted 
on  the  first  trial,  the  ruling  can  not  be  appealed  from  until  there  is 
judgment  on  the  second  hearing.0    The  question  is  properly  presented 
with  questions  arising  on  the  second  trial.     Whether  the  new  trial  is 
granted  or  refused,  the  question  is  presented  on  appeal  by  an  assign- 
ment of  error  on  that  ruling.p 

Where  the  appeal  is  taken  by  the  opposite  party,  the  granting  of  the 
new  trial  on  the  former  hearing  may  be  assigned  by  the  appellee  as  a 
cross-error.*1 

941.  Default ;  can  be  no  new  trial. — To  entitle  either  party  to 
a  new  trial,  there  must  of  necessity  have  been  a  trial  of  the  cause/ 

It  has  been  held,  therefore,  that  where  judgment  has  been  rendered 
against  a  defendant  by  default,  he  can  not  properly  move  for  a  new 
trial,  as  there  has  been  no  trial.3 

But  where,  after  a  default,  the  defendant  appears  and  contests  the 
amount  of  damages,  he  may  move  for  a  new  trial  on  the  ground  of 
excessive  damages,  or  that  the  amount  of  recovery  is  too  large.1 

942.  Effect  of  consent  of  parties. — The  parties  may  consent  to 
the  granting  of  a  new  trial,  and  the  court  may  sustain  the  motion  upon 
such  consent  being  given ;  but  where  both  parties  are  willing  that  a 
new  trial  may  be  granted,  the  court  may  still  overrule  the  motion,  and 
it  will  not,  for  that  reason  alone,  be  error.u 

(o)  House  v.  Wright,  22  Ind.  383 ;         (r)  Webster  v.  Maiden,  41  Ind.  124, 

White  v.  Harvey,  23  Ind.  55.  130. 

(p)  Cronk   v.    Cole,    10    Ind.   485;         (s)  Fisk  v.  Baker,  47  Ind.  534. 
Cook  v.  Otto,  13  Ind.  380;  Sanford  v.         (t)  Bash  v.  Van  Osdol,  75  Ind.  186; 

Tucker,  54  Ind.  219.  Briggs  v.  Sneghan,  45  Ind.  14;  ante, 

(q)  Hill  v.  Newman,  47  Ind.  187.  \  458. 

(u)  Wright  v.  Miller,  63  Ind.  220. 


612  NEW   TRIAL — VENIRE   DE    KOVO.  [CHAP. 

TERMS   OF  GRANTING   NEW   TRIAL. 

943.  Costs. — The  granting  of  a  new  trial  is  very  much  within  the 
discretion  of  the  court,  subject  to  review  on  appeal. 

So  the  statute  leaves  the  terms  upon  which  relief  may  be  granted 
very  much  to  the  discretion  of  the  court.  It  provides:  "And  the 
court,  in  granting  new  trials,  may  allow  the  same  at  the  costs  of  the 
party  applying  therefor,  or  on  the  costs  abiding  the  event  of  the.  suit, 
or  a  portion  of  the  costs,  as  the  justice  and  equity  of  the  case  may  re- 
quire, taking  into  consideration  the  causes  which  may  make  such  new 
trial  necessary/ 

Where  the  new  trial  is  rendered  necessary  by  some  error  of  the 
court,  or  other  cause  unconnected  with  any  negligence  of  the  losing 
party,  the  costs  should  be  left  to  abide  the  event  of  the  suit.w 

The  order  for  the  payment  of  costs  should  be  made  at  the  time  the 
motion  is  ruled  upon,  and  must  relate  to  costs  accrued  up  to  that  time, 
and  not  to  costs  that  may  be  made  thereafter.1 

944.  Can  not  be  granted  on  condition. — While  the  terms  of 
granting  the  new  trial  are  left  to  the  discretion  of  the  court,  so  far  as 
the  costs  are  concerned,  the  court  can  not  grant  the  relief  on  the  con- 
dition that  certain  costs  are  paid,  or  any  other  condition. y 

It  was  held  otherwise  in  some  of  the  earlier  cases.2 

945.  Costs  can  not  be  recovered  back. — Costs  paid  on  grant- 
ing a  new  trial  can  not  afterwards  be  recovered  back,  although  the 
party  paying  them  may  be  successful  on  a  second  trial.3 

946.  Effect  of  granting  a  new  trial. — The  effect  of  granting  a 
new  trial  is  to  vacate  the  judgment  rendered  in  the  cause,  and  leaves 
the  action  pending  for  trial  as  if  no  trial  had  taken  place. b 

It  opens  up  the  whole  case,  and  implies  a  re-examination  of  all  of 
the  issues.0 

(v)  R.  S.  1881,  §  559,  sub.  8.  Sunman  v.  Brewin,  52  Ind.  140;  ante, 

(w)  Fisher  v.  Bridges,  4  Blkf.  518.  §  465. 

(x)  Swingle  v.   The    Bank  of    the  (z)  Moberly  v.  Davar,  5  Blkf.  409; 

State,  41  Ind.  423.  Chambers  v.  Bass,  18  Ind.  3;  Watts  v. 

(y)  Heath   v.  Shelby,   1   Blkf.  228;  Green,  30  Ind.  98. 

De  Ford  v.  Urbain,  48  Ind.  219  ;   Am-  (a)  Tarpy  v.  Outohfield,  38  Ind.  58. 

merman   v.   Gallimore,   50  Ind.   131;  (b)  Ricketts  v.  Kitchens,  34  Ind.  348. 

(c)  Peed  v.  Brenneman,  72  Ind.  288. 


XXI.  J  NEW    TRIAL — VENIRE   DE   NOVO.  Glo 

AFFIDAVITS    IN    SUPPORT    OF   MOTION. 

947.  Proof,  how  made. — We  have  seen  that  certain  reasons  for 
a  new  trial  must  be  supported  by  evidence.*1    This  is  usually  done  by 
affidavits,  but  the  parties  may  properly  introduce  parol  testimony  or 
other  evidence  that  would  be  competent  on  the  trial  of  a  cause. 

Where  the  proof  is  by  affidavit,  the  adverse  party  should  be  allowed 
to  inspect  the  same  before  the  motion  is  called  up  for  hearing.6  The 
affidavit  should  clearly  state  the  cause  complained  of,  and,  if  miscon- 
duct of  a  juror  is  charged,  the  particular  juror  should  be  clearly 
identified/ 

Counter-affidavits  may  be  made  by  the  opposite  party.8 

The  affidavits  must  be  positive  and  certain.  It  is  not  sufficient  to 
charge  the  misconduct  of  a  juror  or  other  cause  "  as  the  affiant  is  in- 
formed and  believes."1* 

Where  surprise  is  charged,  the  affidavit  must  be  made  by  the  party 
or  his  attorney.1 

•  Time  should  be  given  the  parties  to  prepare  the  necessary  affidavits, 
but  where  the  court  refuses  to  give  time  it  must  be  shown  by  affida- 
vit that  if  time  had  been  given,  a  good  showing  by  affidavit,  or  other- 
wise could  have  been  made,  or  the  refusal  will  not  be  available  error 
on  appeal. j 

948.  Witness  compelled  to  make  affidavit. — It  is  no  excuse 
for  the  failure  to  file  the  affidavit  of  the  witness  that  he  has  refused  to 
mak<,  it.     Upon  the  proper  showing  the  witness  will  be  compelled  to 
make  affidavit  of  the  facts  within  his  knowledge. k 

949.  Juror's  affidavit. — It  is  the  well-settled  rule  that  a  juror's 
affidavit  can  not  be  received  to  impeach  a  verdict  in  which  he  has 
joined.1 .  ^ 

Nor  can  his  statements,  proved  by  other  persons,  be  used  for  such 
purpose.01 

(d)  Ante,  §§  871,  898,  925.  (1)  Sinclair  v.  Koush,  14  Ind.  450; 

(e)  Hubble  v.  Osborn,  31  Ind.  249.  Bradford  v.  The   State,  15   Ind.  347; 

(f )  Achey  v.  The  State,  64  Ind.  56.  McCray  v.  Stewart,  16  Ind.  377;  'flaun 

(g)  Whistler  v.  Teague,  66  Ind.  565.  v.  Wilson,  28  Ind.  296;  Withers  r.  Fis- 
(h)  Toliver  v.  Moody,  39  Ind.  148;  cus,  40   Ind.  131;  Hughes  v.  Listner, 

Stanley  v.  Sutherland,  54  Ind.  339.  23  Ind.  396 ;  Stanley  v.  Sutherland,  54 

(i)  Brownlee    v.    Kennip,    41    Ind.  Ind.  339. 

216.  (m)  McCray    v.  Stewart,    16    Ind 

(j)  Davis  v.  Hardy,  76  Ind.  272.  377. 

(k)  Huston   v.  Vail,   51    Ind.   299; 
ante,  §  925. 


614  NEW   TEIAL — VENIRE   DE    XOVO.  [CHAP. 

•  But  his  affidavit  may  be  taken  in  support  of  the  verdict." 

950.  Determined  by  the  weight  of  the  evidence. — Whether 
a  party  is  entitled  to  a  new  trial  or  not,  -where  the  reasons  must  be 
supported  by  proof,  presents  a  question  of  fact  to  be  determined  by  the 
court  according  to  the  weight  of  the  evidence,  and,  on  appeal,  if  the 
evidence  is  conflicting,  the  ruling  of  the  court  will  not  be  disturbed 
where  there  is  any  evidence  to  support  it.0 

NUMBER   OF   NEW  TRIALS. 

951.  Unlimited. — Under  the  code  of  1852  it  was  provided  that 
not  more  than  two  new  trials  should  be  granted  to  the  same  party  in 
the  same  cause. p 

Under  this  statute  there  are  many  decided  cases  in  which  the  con- 
struction to  be  given  the  section  is  considered. 

It  was  uniformly  held  that  there  could  be  but  two  new  trials  granted 
by  the  trial  court/ 

The  present  code  contains  no  limitation  on  the  number  of  new  trials 
that  may  be  granted  to  a  party,  this  clause  being  omitted  in  the  pres- 
ent revision.3 

Therefore  a  party  may  continue  to  move  for  a  new  trial,  and  is  enti- 
tled to  it  as  long  as  any  of  the  statutory  causes  therefor  exist. 

COMPLAINT   FOR   NEW  TRIAL. 

952.  The  statute. — "  Where  causes  for   new   trial  are  discovered 
after  the  term  at  which  the  verdict  or  decision  was  rendered,  the  appli- 
cation may  be  made  by  a  complaint  filed  with  the  clerk,  not  later  than 
the  second  term  after  the  discovery,  on  which  a  summons  shall  issue  as 
on  other  complaints,  requiring  the  adverse  party  to  appear  and  answer. 
The  application  shall  stand  for  hearing  at  the  term  to  which  the  sum- 
mons is  returned  executed,  and  shall  be  summarily  decided  by  the 
court  upon  the  evidence  produced  by  the  parties.     But  no  such  appli- 

(n)   Bradford  v.  The  State,  15  Ind.  (p)  2  K.  S.  1876,  p.  182,  §  .352,  sub.  8. 

347;  fiaun   v.  Wilson,   28   Ind.   296;  (r)  Huberts  v.  Kobeson,  22  Ind.  456; 

Harding  v.  Whitney,  40  Ind.  379.  Charles  v.  Malott,  65  Ind.  184;  Judah 

(o)  Harding  v.   Whitney,    40    Ind.  v.   The   Trustees   of    Yincennes   Uni- 

379;    Holloway  v.  The  State,  53  Ind.  versity,   23   Ind.   272;    Carmichael   r. 

554;  McCully  v.   The   State,  62   Ind.  Geary,  27  Ind.  362;  Shirts  r.  Irons,  47 

428;  Achey  v.  The  State,  64  Ind.  56;  Ind.   445;   Headrick   v.  Wisehart,   57 

Whistler  v.  Teague,  6G  Ind.  565;  De  Ind.  129. 

Priest  v.  The  State,  68  Ind.  569.  (s)  K.  S.  1881,  §  559,  sub.  8. 


XXI.]  NEW   TRIAL — VENIRE   DE   NOVO.  615 

cation  shall  be  made  more  than  one  year  after  the  final  judgment  was 
rendered." ' 

953.  When  must  be  filed. — The  time  when  the  complaint  must 
be  filed  is  fixed  by  the  statute. 

The  limitation  is  twofold  : 

1.  It  must  not  be  later  than  the  second  term  after  the  discovery.11 

2.  It  must  be  within  one  year  after  the  final  judgment/ 

Under  these  two  limitations,  if  the  discovery  of  the  new  evidence  is 
made  so  that  the  second  term  thereafter  is  less  than  one  year  from  the 
final  judgment,  the  complaint  must,  nevertheless,  be  filed  in  time  for 
such  second  term  or  it  is  too  late.  If  the  discovery  is  made  at  a  time 
when  the  second  term  thereafter  would  be  later  than  one  year,  the  ap- 
plication will  be  too  late  unless  it  is  filed  long  enough  before  the  term 
to  be  within  the  year.  If  there  is  no  intervening  term  after  the  dis- 
covery the  complaint  must  be  filed  within  the  year.  If  dis'covery  is 
not  made  within  a  year  from  the  final  iudginent  there  can  be  no  relief 
under  this  section. 

954.  The  pleadings. — It  may  well  be  doubted  whether  any  plead- 
ings are  contemplated  by  the  statute,  as  it  is  provided  that  the  ques- 
tions presented  "shall  be  summarily  decided  by  the  court  upon  the 
evidence  produced  by  the  parties."* 

But  it  is  firmly  settled  by  the  decided  cases  that  the  application  can 
only  be  presented  by  a  com  plaint. x 

That  there  may  be  a  demurrer  thereto, y  and  that  an  issue  must  be 
formed  by  answer.2 

In  the  case  of  Sanders  v.  Loy,  the  court  say:  "An  issue  must  be 
formed  on  ilie  complaint,  and  the  issues  thus  formed  must  be  tried  by  the  court." 

955.  The  complaint. — The  complaint  must  show: 

1.  That  the  cause  for  a  new  trial  existed  at  the  time  of  the  trial.8 

2.  That  it  has  been  discovered  since  the  term.b    Where  there  are 

(t)  R.  S.  1881,  §  503.  tion  v.  Reynolds,  61  Ind.  104;  Hum- 

(u)  Webster  T.  Maiden,  41  Ind.  124.  phreys  v.  Klick,  49  Ind.  189. 

(v)   Webster  v.  Maiden,  41  Ind.  124;  (z)  Sanders  v.  Loy,  45  Ind.  229. 

Roush  v.  Layton,  51  Ind.  106.  (a)  Stanley  v.  Peoples,  13  Ind.  232. 

(w)  R.  S.  1881, §  563.  (b)  Tillison   v.   Crim,  22   Ind.  357; 

(x)  Stanley  v.  Peeples,  13  Ind.  232;  Schigley  v.  Snyder,  45  Ind.  543;  Car- 
Sanders  v.  Loy,  45  Ind.  229;  Hannah  ver  v.  Compton,  51  Ind.  451;  The 
v.  Dorrell,  73  Ind.  465;  Freeman  v.  Trustees  of  the  Indiana,  etc.,  Associ- 
Bowman,  25  Ind.  236.  ation  v.  Reynolds,  61  Ind.  104;  Han- 

(y)  Sanders  v.   Loy,  45   Ind.   229;  nah  v.  Dorrell,  73  Ind.  465. 
The  Trustees  of  Indiana,  etc.,  Assot-ia- 


616  NEW    TRIAL— VEXIBE   DE    XOVO.  [CHAP. 

several  parties  it  must  be  shown  that  the  cause  for  a  new  trial  was  un- 
known to  all  of  them.c 

3.  That  it  could  not  have  been  discovered  before  the  close  of  the 
term.d 

4.  That  due  diligence  was  used  to  discover  it.e    It  is  not  sufficient  to 
allege  generally  that  the  plaintiff  "  used  due  diligence  to  ascertain,  be- 
fore trial,"  or  before  the  close  of  the  terra,  the  cause  set  out.     The 
facts  constituting  the  diligence  must  be  specifically  stated/ 

5.  The  cause  alleged  must  be  such  as  would  have  authorized  a  new 
trial  during  the  term.e 

6.  If  for  newly  discovered  evidence,  a  statement  of  the  issues  on  the 
former  trial,  but  not  a  full  transcript.11 

7.  The  evidence  given  on  the  former  trial,  as  well  as  that  discov- 
ered, must  be  fully  set  out.1    This  rule  does  not  apply  where  the  com- 
plaint aseigns  other  reasons.J 

8.  That  the  discovered  evidence  is  not  cumulative  or  impeaching.k 

9.  The  complaint  must  be  verified.1^!) 

956.  Parties. — All  of  the  parties  to  the  original  action  must  be 
made  parties  to  the  complaint  for  a  new  trial."1 

If  any  of  the  parties  against  whom  judgment  has  been  rendered  de- 
cline to  join  in  the  complaint,  they  must  be  made  defendants. 

957.  Demurrer. — A  demurrer  to  the  complaint  fora  new  trial, 
which  contains  what  purports  to  be  the  evidence  on  the  former  trial 
and  that  discovered,  admits,  for  the  purposes  of  the  demurrer,  that  the 
evidence  is  fully  and  properly  set  out.n 

(c)  Berry  v.  Daily,  30  Ind.  183.  236;  Glidewell  v.  Daggy,  21  In.l.  9:>; 

(d)  Bartholomew   v.   Loy,   44    Ind.  Bartholomew    v.    Loy,   44    Ind.   393; 
393;  Carver  v.  Compton,  51   Ind.  451 ;  Roush  v.  Layton,  51  Ind.  106;  Carver 

(e)  Rickart  v.  Davis,  42   Ind.  164;  v.  Compton,  51  Ind.  451 ;  The  Trustees 
Bartholomew   v.   Loy,   44    Ind.    393;  of    the    Indiana,   etc.,   Association    v. 
Nordman  v.  Stough,  50  Ind.  280;  Cox  Reynolds,  61  Ind.  104;  Huntington  v. 
v.  Harvey,  53  Ind.  174.  Drake,  24  Ind.  347. 

(f)  Reno  v.  Robertson,  48  Ind.  106;  ( j)  House  v.  Wright,  22  Ind.  383. 
Nordman  v.  Stough,  50  Ind.  280.  (k)  Schigley  v.  Snyder,  45  Ind.  543  ; 

(g)  Stanley  ?-.  Peeples,  13  Ind.  232;  Cox   v.  Harvey,   53   Ind.   174;   Hum- 
Allen   v.  Gillum,  16  Ind.  234;  Glide-  phreys  r.  Klick,  49  Ind.  189;  Houston 
well  v.  Daggy,  21  Ind.  95.  o.  Brunei-,  39  Ind.  376. 

(h)  McKee   v.   McDonald,    17   Ind.  (1)   Allen   v.    Gillum,   16   Ind.  234; 

518;  Glidewell  v.  Daggy,  21  Ind.  95;  Cox  v.  Hitchings.  21  Intl.  219. 

Rickart  v.  Davis,  42  Ind.  164;   Carver  (m)  Carver  v.  Compton,  51  Ind.  451. 

c.  Compton,  51  Ind.  451.  (n)  Sar.ders   v.    Loy,   45   Ind.  229; 

(i)   Freeman    v:   Bowman.    25    Tnd.  Humphreys  ?•.  Klick,  49  Ind.  189;  The 

(1)  Form  of  complaint,  Vol.  3,  p.  251. 


XXI.]  M:\V    TRIAL — VENIRE   DE   NOVO.  617 

This  is  not  so  where  the  complaint  shows  on  its  face  that  it  does  not 
contain  all  of  the  evidence.0 

The  demurrer  in  this  class  of  cases  is  governed  by  the  same  rules 
as  in  ordinary  cases. 

958.  The  trial. — There  is  nothing  peculiar  about  the  practice  on 
the  trial  of  this  class  of  cases.  The  statute  is  so  indefinite  that  it  has 
been  a  matter  of  doubt  whether  issues  should  be  formed  or  whether 
the  complaint  should  be  treated  merely  as  a  motion,  and  the  proof 
made  by  affidavits,  as  in  case  where  the  motion  is  filed  during  the  term. 

The  authorities,  as  I  have  shown,  are  to  the  effect. that  the  applica- 
tion must  be  treated  as  an  independent  proceeding,  and  issues  formed 
as  in  ordinary  cases. p 

It  is  equally  well  settled  that  the  proper  manner  of  making  the 
proof  is  by  parol  ev-ideuce,  and  not  by  affidavit.q 

In  Sanders  v.  Loy  the  court  say :  "  The  application,  when  made 
after  judgment  and  at  a  subsequent  term  of  the  court,  must,  as  we  have 
seen,  be  regarded  as  an  independent  proceeding,  and  must  set  out  the 
issues  upon  the  former  trial  and  the  evidence  given  on  such  trial,  with 
the  newly  discovered  evidence.  An  issue  must  be  formed  on  the  com- 
plaint, and  the  issue  thus  formed  must  be  tried  by  the  court.  Upon 
such  trial,  the.plaintiff  should  introduce  in  evidence  the  record  of  the 
former  trial,  prove  what  the  evidence  was  upon  such  trial,  the  newly 
discovered  evidence,  and  show  that  it  had  been  discovered  since  the 
term,  when  the  case  was  formerly  tried,  and  what  diligence  he  had 
used  to  discover  the  evidence  before  the  former  trial." 

The  plaintiff  is  required  to  prove  the  allegations  of  his  complaint,  as 
in  other  cases.  The  defendant  may  introduce  any  legitimate  evidence 
to  disprove  these  allegations,  such  as  that  the  evidence  on  the  former 
trial  was  not  as  it  is  alleged  to  be;  that  due  diligence  was  not  used; 
that  the  plaintiff  knew  of  the  evidence  claimed  to  have  been  newly 
discovered,  and  the  like.  Some  of  the  cases  seem  to  recognize  the 
right  of  the  parties  to  make  their  proof  by  affidavit/ 

But  this  is  clearly  not  the  better  practice.  If  the  proceeding  is 
such  that  parol  evidence  is  proper,  and  issues  are  regularly  formed,  af- 
fidavits should  not  be  received.9  The  parties  are  not  entitled  to  a  jury 
trial.1 

Trustees  of  the  Indiana,  etc.,  Associa-         (q)  Allen    v.  Gillum,  16   Ind.  234; 
tion  v.  Reynolds,  61  Ind.  104.  Sanders  v.  Loy,  45  Ind.  229. 

(o)  The  Trustees  of  the  Indiana,  etc.,  (r)  Pattison  v.  Wilson,  22  Ind.  358; 
Association  v:  Reynolds.  61  Ind.  104.  Glidewell  v.  Dagsy,  21  Ind.  95. 

(p)  Ante,  §  954.  (s)   Houston  v.  Bruner,  59  Ind.  25. 

(t)  Houston  v.  Bruner,  59  Ind.  25. 


618  MEW    TRIAL — VEX1BE    DE    NOVO.  [CHAP. 

959.  Appeal. — Notwithstanding  the  application  is  declared  to  be 
an  independent  proceeding,  it  is  held  that  the  judgment  of  the  court 
therein  is  merely  interlocutory,  and  no  appeal  can  be  taken  therefrom 
wheTe  the  new  trial  is  granted." 

It  is  otherwise  where  the  new  trial  is  refused,  as  the  judgment  is 
final. 

Where  an  appeal  is  taken  from  a  judgment  on  demurrer  to  the  com- 
plaint, none  of  the  evidence  need  be  taken  up  by  bill  of  exceptions. 
The  evidence  on  the  former  trial  and  that  discovered  is  a  part  of  the 
complaint. v  But  to  present  any  question  growing  out  of  the  evidence 
there  must  be  a  bill  of  exceptions,  containing  all  of  the  evidence  given 
at  the  trial  of  the  application,  which  necessarily  includes  all  of  the  ev- 
idence given  on  the  original  trial  and  the  newly  discovered  evidence, 
as  the  same  is  proved  in  the  trial  of  the  application. w 

The  cause  will  not  be  reversed,  where  a  new  tria'l  has  been  refused, 
unless  it  appears  that  a  second  trial  would  probably  bring  about  a  dif- 
ferent result.1 

NEW   TRIAL  AS   OF   RIGHT. 

960.  The  statute. — "  The  court  rendering  the  judgment  on  ap- 
plication made  within  one  year  thereafter  by  the  party  against  whom 
judgment  is  rendered,  his  heirs,  assigns,  or  representativ.es,  and  on  the 
applicant  giving  an  undertaking,  with  surety,  to  be  approved  by  the 
court  or  clerk,  that  he  will  pay  all  costs  and  damages  which  shall  lie 
recovered  against  him  in  the  action,  shall  vacate  the  judgment  and 
grant  a  new  trial.     The  court  shall  grant  but  one  new  trial  under  the 
provisions  of  this  section." y 

This  statute  authorizes  but  one  new  trial  in  the  same  cause.2 

961.  In  what  causes  may  be  granted. — The  section  is  not,  in 
terms,  limited  to  any  class  of  actions,  but  it  is  a  part  of  the  act  relating 
to  actions  in  ejectment,  and  applies  to  such  actions  only.     It  has  been 
extended,  however,  to  actions  to  quiet  title  to  real  estate." 

It  has  been  held  not  to  be  applicable  in  the  following  actions : 

(u)  House  v.  Wright,  22  Ind.  383;  (z)  Ewing  v.  Gray,  12  Ind.  64. 

White  v.  Harvey,  23  Ind  55.  (a)  Slminan   v.  Gavin,    15  Ind.  93; 

(v)  Sanders  v.  Loy,  45  Ind.  229,  234.  Adams   v.  Wilson,  60  Ind.  560;  Shu- 

(w)  Sanders  v.  Loy,  45  Ind.  229.  craft  ??.  Davidson,  19  Ind.  98;  Zimmer- 

(x)  Freeman   v.  Bowman,   25   Ind.  man?).  Marchland,  23  Ind.  474;  Moor 

236;    Humphreys   v.   Klick,   49    Ind.  v.  Seaton,  31  Ind.  11 ;  Hunter  v.  Chris- 

189.  man,  70  Ind.  439. 
(y)  R.  S.  1881, 1  1064. 


XXI.]  XKW    TUIAL— VENIKE    DE    XOVO.  619 

1.  For  specific  performance. b 

2.  Foreclosure  of  mortgages.0 

3.  In  actions  between  landlord  and  tenant  for  possession.4 

4.  Partition  proceedings.6 

962.  The  motion. — The  statute  does  not  provide  what  steps  shall 
be  taken  to  procure  the  new  trial,  except  that  the  costs  shall  be  se- 
cured by  an  undertaking. 

It  was  first  held  that  no  written  motion  need  be  filed,  though  it  was 
intimated  that  it  would  be  the  better  practice/ 

It  has  since  been  held  that  the  application  must  be  made  by  a  writ- 
ten motion  or  supplemental  complaint.8 

As  the  application  is  regarded  as  a  part  of  the  original  cause, 
and  no  summons  is  necessary,  it  should  be  by  motion,  which  should 
show  the  rendition  of  the  judgment  in  the  cause,  the  time  when 
rendered,  that  the  proper  undertaking  has  been  given  and  approved  by 
the  court  or  the  clerk,  and  that  a  new  trial  is  demanded  as  of  right 
and  without  cause. h 

It  is  not  necessary  to  set  out  the  issues  on  the  former  trial.' 

The  court  can  not  grant  a  new  trial  except  upon  the  proper  applica- 
tion. Thus  it  is  held  that,  where  the  motion  is  for  causes  assigned, 
the  court  can  not  grant  a  new  trial  as  of  right.-" 

But,  where  the  new  trial  is  granted  without  a  written  motion,  and 
the  adverse  party  appears  to  the  original  action  thereafter,  and  con- 
tests the  same  on  its  merits,  the  want  of  a  written  motion  is  waived. k 

The  application  can  not  be  made  until  after  judgment.1 

963.  Undertaking  must  be  given  and  new  trial  granted 
•within  one  year. — The  right  to  a  new  trial  under  this  section  de- 
pends solely  upon  the  giving  of  the  undertaking  for- costs  within  one 
year.     The  statute  requiring  it  is  imperative.     The  code  of  1852  re- 
quired the  actual  payment  of  the  costs.1" 

The  giving  of  the  undertaking  takes  the  place  of  the  payment  of  all 

f 

(b)  Allen  v.  Davidson,  16  Ind.  416;        (h)  Crews  v.  Ross,  44  Ind.  481.  But 
"Walker  v.  Cox,  25  Ind.  271.  see  Heberdv.  Wines,  105  Ind.  237. 

(c)  Jenkins  v.  Corwin,  55  Ind.  21.  (i)  Shaman  v.  Gavin,  15  Ind.  93. 

(d)  Over  v.  Moss,  41  Ind.  463.  (j)  Koile  ».  Ellis,  16  Ind.  301. 

(e)  Harness  v.  Harness,  49  Ind.  384;         (k)  Marsh  v.  Elliot,  51  Ind.  547. 
McFarran  v.  MwFarran,  69  Ind.  29.  (1)  Whitlock  v.  Vancleave,  39  Ind. 

(f)  Zimmerman    r.    Marchland,    23     oil. 

Ind.  474.  (m)  Zimmerman   v.   Marchland,   23 

(g)  Crews  v.  Ross,  44  Ind.  481.     But  Ind.  474;   Whitlock  v.  Vancleave.  39 
seethe  later  case  of  The  Physio-Med.  Ind.  511;  Blizzards.  Blizzard,  40  Ind. 
Col.  v.  Wilkinson,  89  Ind.  26,  where  it  344;    Montgomery  v.   Hays,   44   Ind. 
is  again  held  that  a  written  motion  is  433;  Golden  v.  Snellen,  54  Ind.  282. 
not  necessary.     Also  Vol.  3,  p.  435. 


620  NEW   TRIAL — VENIRE   DE    NOVO.  [CHAP. 

costs  under  the  old  statute,  and  an  order  granting  the  new  trial  with- 
out the  undertaking  is  absolutely  void.  Upon  a  showing  that  it  was 
not  given  at  the  time  the  order  was  made,  the  cause  should  be  stricken 
from  the  docket." 

The  court  has  no  power  to  make  the  order  on  condition  that  the 
costs  are  paid  thereafter.0 

Either  party  has,  by  the  express  terms  of  the  statute,  one  year  in 
which  to  give  the  undertaking  and  apply  for  and  obtain  a  new  trial. 
The  court  has  no  power  to  limit  the  time  thus  given. p 

It  was  held  under  the  former  statute  that,  where  the  costs  were  paid 
and  the  application  made  within  the  year,  the  failure  of  the  court  to 
make  the  order  could  not  affect  the  rights  of  the  party,  and  the  order 
could  be  made  after  the  year  had  expired. q 

But  this  case  has  been  expressly  overruled  on  this  point,  and  it  was 
firmly  settled  that  the  costs  must  be  paid,  the  application  made,  and 
the  order  granting  the  new  trial  actually  made  within  the  year/ 

The  objection  that  the  undertaking  has  not  been  given  must  be  made 
at  the  proper  time,  or  it  is  waived.  If,  after  being  notified,  the  ad- 
verse party  appears  to  the  action  and  contests  the  same  on  the  merits, 
without  making  any  objection  to  the  validity  of  the  order  granting  the 
new  trial,  it  is  waived.8 
• 

964.  The  undertaking. — Prior  to  the  present  revision  of  the  code 
no  undertaking  was  required,  but  all  costs  must  be  paid  up  to  the  time 
of  making  the  application.* 

The  statute  now  provides  that  the  applicant  shall  give  an  undertak- 
ing, with  surety,  to  be  approved  by  the  court  or  clerk,  that  he  will  pay 
all  costs  and  damages  which  shall  be  recovered  against  him  in  the  ac- 
tion." 

This  undertaking  includes  the  costs  of  the  former  action,  as  well  as 
those  to  accrue,  in  case  they  are  adjudged  against  him.(l) 

965.  The  notice. — It  is  not  necessary  that  any  notice  shall  be 
given  of  the  application/ 

(n)  Golden  v.  Snellen,  54  Ind.  282.       Ferger  v.  Wesler,  85  Ind.  53;  Hays  v. 

(0)  Crews  v.  Ross,  44  Ind.  481  ;  Falls     May,  35  Ind.  427. 

v.  Hawthorn,  30  Ind.  444.  (s)  Vernia  r.  Lawson,  54  Ind.  485. 

(p)  Falls  v.  Hawthorn,  30  Ind.  414;         (t)  2  R.  S.  1876,  p.  252,  §  601. 
Whitlock  v.  Vancleavc,  39  Ind.  511 ;         (u)   R.  S.  1881,  §  1064. 
Scranton  v.  Stewart.  52  Ind.  68.  (v)   Murray  v.  Kelly,   27   Ind.  42; 

(q)  Falls  v.  Hawthorn,  30  Ind  444.  Whitlock  r.  Yancleave,  39  Ind.  511 ; 

(r)  Crews    v.   Ross,    44    Ind.    481;  Steeple    v.   Downing,    60    Ind.    478; 

Skeen  v.  Muir,  34  Ind.  310. 

(1)  Form  of  undertaking,  Vol.  3,  p.  435. 


XXI.]  NEW   TRIAL— VENIRE   DE   NOVO.  G21 

The  statute  requires  that  where  the  new  trial  is  granted  after  the 
term,  ten  days'  notice  shall  be  given  the  opposite  party  before  the 
next  succeeding  term.w 

The  notice  required  is  simply  ^hat  a  nev  trial  has  been  granted.(l) 

966.  The  evidence. — A  new  trial,  as  of  right,  can  not  be  granted 
in  vacation.* 

The  application  must  be  made  in  open  court,  and  can  only  be 
granted  upon  proper  proof  of  the  fact  that  the  undertaking  for  costs 
has  been  given. y 

As  the  application  is  made  by  motion  the  proof  may  be  made  by 
affidavit.2 

But  parol  evidence  may  properly  be  taken.  On  appeal,  if  there  is 
nothing  in  the  record  to  show  whether  the  statute  has  been  complied 
with  or  not,  it  will  be  presumed." 

967.  Appeal. — There  is  nothing  in  the  decided  cases  by  which-the 
proper  practice,  on  appeal,  can   be   determined.     The  motion  being 
treated  as  a  part  of  the  original  action,  where  the  new  trial  is  granted 
no  appeal  can  be  taken  until  final  judgment  is  rendered  on  the  merits.b 

If  the  new  trial  is  refused  an  appeal  may  be  taken  at  once.  Where 
the  question  arises  upon  the  fact  whether  the  undertaking  has  been 
given  or  not,  it  would  seem  to  be  necessary  that  the  evidence  should 
be  set  out  by  bill  of  exceptions. 

But  in  a  late  case  it  was  held,  under  the  former  statute,  that  where 
it  appeared,  by  the  bill  of  exceptions,  that  the  costs  had  been  paid, 
without  showing  how  or  to  whom,  the  court  would  presume  that  it  was 
paid  to  the  proper  person,  in  lawful  money,  and  that  the  bill  of  ex- 
ceptions need  not  contain  the  evidence.0 

It  is  evident  that  where  the  party  against  whom  the  new  trial  has 
been  granted  desires  to  contest  the  question  whether  the  statute  has 
been  complied  with  or  not,  he  must  set  out  the  evidence  showing  that 
it  was  not,  as  the  presumptions  are  all  against  him. 

968.  Effect  of  order  granting. — The  effect  of  making  the  order 
granting  a  new  trial  is  to  vacate  the  judgment  without  any  formal  en- 
try setting  it  aside. d 

(w)  R.  S.  1881,  §  1065;   Whitlock  v.  (a)  Vanduyn    v.    Hepner,   45    Ind. 

Vancleave,  39  Ind.  51 1;  Skeen  v.  Aluir,  589;  Hunter  v.  Chrisman,  70  Ind.  439. 

84  Ind    310.  (b)   Ante,  §940. 

(x)   Ferger  v.  Wesler,  35  Ind.  53.  (c)  Hunter  r.  Chrisman,  70  Ind.  439, 

(y)  Crews  v.  Ross,  44  Ind.  481,  483;  445. 

McSheely  v.  Bentley.  31  Ind.  235.  (d)  Steeple    v.    Downing,    60    Ind. 

(z)  Golden  v.  Snellen,  54  Ind.  282.  478;  Maxwell  v.  Campbell,  45  Ind.  360. 

(1)  Form  of  notice,  Vol.  3,  p.  435. 


622  NKW   TRIAL — VENIRE   DE    NOVO.  [CHAP. 

The  cause  stands  for  trial  at  the  next  ensuing  term,  the  proper  notice 
being  given. 

969.  Default ;  can  be  no  new  trial  as  of  right.  —Where  the 
judgment  has  been  taken  by  default  there  can  be  no  new  trial  as  of 
right.6 

VENIRE   DE   NOVO.(l) 

970.  Defective  verdict. —  Venire  de  novo  is  a  common-law  remedy 
and  is  unknown  to  the  code.     It  can  only  be  resorted  to  where  there  is 
some  defect  appearing  on  the  face  of  the  verdict  or  finding/ 

To  authorize  a  venire  de  novo  the  verdict  must  be  so  uncertain,  am- 
biguous, or  defective  that  no  judgment  can  be  rendered  thereon.8 

Where  there  is  no  defect  or  uncertainty  in  the  verdict  or  finding 
there  is  no  ground  for  the  motion.11 

Where  the  verdict  is  certain  as  to  the  complaining  party  he  can  not 
avail  himself  of  its  uncertainty  as  to  others.' 

But  where  there  is  no  finding  as  to  one  of  the  parties  he  is  entitled 
to  a  new  venire.* 

Where  there  is  a  general  and  special  verdict  returned,  and  the  latter 
covers  the  whole  of  the  issues,  there  is  no  error  in  striking  out  the  gen- 
eral verdict,  and  a  venire  de  novo  in  such  case  should  be  refused. k 

The  failure  to  assess  damages  is  a  defect  in  the  verdict  that  is  reached 
by  a  motion  for  a  venire  de  novo.1 

That  the  court  failed  to  find  conclusions  of  law  on  the  special  find- 
ings is  no  reason  for  awarding  a  venire  de  novo.m 

971.  Failure  to  find  the  whole  issue. — It  was  held,  in  a  long 
line  of  decisions,  that,  svhere  a  special  verdict  or  special  finding  of  the 

(e)  Fisk  v.  Baker,  47  Ind.  534.  v.  Martin,  75  Ind.  228;  Trout  v.  West, 

(f )  Shaw   v.   The    Merchant's    Na-  29  Ind.  51 ;  Bonewits  v.  Wygant,  75 
tional  Bank,  60  Ind.  83;  McClintock  a.  Ind.  41;    Thames   Loan,   etc.,    Co.   v. 
Theis,  74  Ind.  200;   Lock.t>.  The  Mer-  Beville,  100  Ind.  309;  Vol.  3,  p.  438. 
chant's  National  Bank,  66  Ind.  353.  (h)  Woodward   t.   Begue,   53    Ind. 

(g)  Moore  r.  Read,  1  Blkf.  177;  Box-  176;   Webster  v.  Bebinger,  70  Ind.  9; 
ley  v.  Collins,  4  Blkf.  320;   Bosseker  v.  Dehority  r.  Nelson,  56  Ind.  414. 
Cramer,  18  Ind.  44;   The  Cincinnati,        (i)  American  Express  Co.  v .  Patter- 
etc.,  R.  R.  Co.  v.  Washburn,  25  Ind.  son,  73  Ind.  430;  Compton  v.  Jones, 
259;    Smith   v.  Jeffries,  25    Ind.  376;  65  Ind.  117. 

Marcus   v.  The   State,    26    Ind.   101;  (j)  Clark  v.  Brown,  70  Ind.  405. 

Merrick   v.   The    State,  63   Ind.  327;  (k)  Webster  v.  Bebinger,  70  Ind.  9; 

Hershman  v.  Hershman,,  63  Ind.  451 ;  (1)  Brickleyu.Weghorn,  71  Ind.  497; 

Ridenour  v.    Beekman,   68   Ind.   236;  Hershman  v.  Hershman,  63  Ind.  451. 

Brickley   v.   We^horn,    71    Ind.   497;  (m)  Holmes  v.  The  Phoenix  Mutual 

Peed  p.  Brenneman,  72  Ind.  288;  Lentz  Life  Ins.  Co.,  49  Ind.  356. 

(1)  Form  of  motion,  Vol.  3,  p.  438. 


.1X1.]  NEW   TKIAL — VENIRE   DE   NOVO.  623 

court  did"  not  cover  all  of  the  issues  in  the  cause,  a  venire  de  novo  must 
be  granted."  But  these  cases  are  in  effect  overruled  by  later  decisions. 
It  is  now  firmly  settled  that  the  office  of  a  special  verdict  or  special 
finding  is  to  find  the/acfe  proved,  and  if  the  facts  as  found  do  not  cover 
all  of  the  issues  this  is  not  a  defect  appearing  upon  the  face  of  the  ver- 
dict. Where  a  fact  necessary  to  cover  the  issues  is  not  found,  it  must 
be  regarded  as  not  proved  by  the  party  having  the  burden  of  proof  as 
to  such  fact,  and  the  verdict  must  be  construed  as  a  finding  against 
him  to  that  extent.  If  such  finding  is  not  sustained  by  the  evidence, 
the  remedy  is  by  a  motion  for  a  new  trial,  and  not  fora  venire  de  novo.0 
With  this  construction  of  the  statute,  the  only  ground  for  a  motion 
for  a  venire  de  novo  is  that  the  verdict  is  so  defective  or  uncertain  on  its 
face  that  no  judgment  can  be  rendered.  That  it  fails  to  find  all  of  the 
facts  proved  is  cause  for  a  new  trial. p 

972.  Finding  the  evidence  or  conclusions  of  law. — It  is  the 
office  of  a  special  verdict  or  finding  to  find  the  facts;  therefore,  if  it 
appears  upon  the  face  of  the  verdict  or  finding  that  the  evidence,  and 
not  the  facts  established  thereby,  or  mere  conclusions  of  law  have  been 
found,  it  is  ground  for  a  venire  de  novo.'1 

The  fact  that  one  of  several  special  findings  of  facts  is  merely  a 
statement  of  conclusions  of  law  does  not  affect  the  others/ 

973.  Imperfect   answers   to   special  interrogatories. — The 
authorities  are  conflicting  on  the  question,  whether  or  not  the  failure 
of  the  jury  to  make  full  and  perfect  answers  to  interrogatories  can  be 
reached  by  a  motion  for  a  venire  de  novo.     In  some  cases  it  has  been 
held  to  be  the  proper  remedy.9    It  has  been  held  otherwise  in  both 
earlier  and  later  cases.' 

(nj  Bosseker  v.  Cramer,  18  Ind.  44;  (p)   Ante,    g§    810,   851,   and    cases 

Jenkins  ,  v.    Parkhill,    25    Ind.    473  ;  cited;  Vol.  3,  p.  438. 

Houscvvorth  v.  Bloom  huff.  54  Ind.  487;  (q)  Locke  v.   The   Merchants'   Na- 

AVhitworth  v.   Ballard,   56  Ind.  279;  tional    Bank,   66   Ind.   353;    Jones  v. 

Jackson  v.  Rounds,  59  Ind.  116;  The  Baird,  76  Ind.  164;   Witham  v.  Earl 

Gazette  Printing  Co.  v.  Morss,  60  Ind.  of  Derby.  1  Wils.  48;  Parker  v.  Hub- 

153;  Anderson  v.  Donnell,  66  Ind.  150,  ble,  75  Ind.  580. 

159;  Gulick  v.  Connelly,  42  Ind.  134;  (r)  Anderson   v.   Donnell,    66   Ind. 

Buskirk's  Prac.,  pp.  207,  219.  150. 

(o)  Graham  v.  The   State,   66   Ind.  (s)  Pea  v.  Pea,  35  Ind.  387;  Peters 

386;  Ex  parte  Walls,  73  Ind.  95,  110;  v.  Lane,  55  Ind.  391. 

Vannoyr.  Duprez,  72  Ind. 26;  "Wilson  (t)  McElfresh    r.    Guard,    32   Ind. 

r.   Hamilton,    75  Ind.  71;   Stumph  v.  408;  Ogle  v.  Dill,  61   Ind.  438;  West 

Hauer.  76  Ind.  157  ;  Jones  v.  Baird,  76  v.  Cavins,  74  Ind.  265. 
Ind.  164;  ante,  §§  811,  851. 


624  NEW   TRIAL — VENIRE    DE   NOVO.  [CHAP.  XXI. 

The  proper  practice,  where  the  interrogatories,  or  any  of  them,  have 
not  been  properly  answered,  is  to  object  to  the  verdict  being  received. 
It  is  the  duty  of  the  court  to  send  the  jury  out  and  require  that  the 
interrogatories  be  fully  and  fairly  answered.  If  this  is  not  done,  and 
the  verdict  is  received,  exception  should  be  taken  at  the  time,  and  the 
question  properly  reserved  by  bill  of  exceptions,  and  assigned  as  a 
cause  for  a  new  trial. u 

The  objection  to  the  verdict  being  received  must  be  made  at  the 
time,  or  the  defect  in  the  answers  to  interrogatories  is  waived/ 

974.  Motion  must  be  made  before  judgment. — A  motion  for 
a  venire  de  novo  should  precede  a  motion  for  a  new  trial. w    And  it  can 
not  be  made  after  judgment. x 

975.  Appeal. — The  question  upon  the  sustaining  or  overruling  of 
a  motion  for  a  venire  de  novo  is  presented  in  the  supreme  court  by  an 
assignment  of  error. y     As  the  question  arises  upon  the  face  of  the  ver- 
dict or  finding,  the  evidence  need  not  appear  in  the  record.2 

The  motion  must  be  made,  as  we  have  seen,  before  judgment,  and 
an  exception  must  then  be  taken.  A  bill  of  exceptions,  showing  the 
motion  and  the  ruling  thereon,  is  necessary. 

(u)  McElfresh    v.    Guard,    32    Ind.  (y)   Bonewits  v.  Wygant,  To  Ind.41 ; 

408;  West  v.  Cavins,  74  Ind.  265.  Wilson  v.  Hamilton,  75  Ind.  71 ;  Ogle 

(v)  Vater  v.    Lewis.    36   Ind.  288;  v.   Dill,    61    Ind.   438;    Locke   v.   The 

Byram  v.  Galbraith,  To  Ind.  131.  Merchant's   National    Bank,    66    Ind. 

(w)  Jenkins  v.  Parkhi.ll,  25  Ind.  473.  353. 

(x)  Shaw    v.   The    Merchants'   !Na-  (z)  Buskirk'o  Prac.  212. 
tional  Bank,  60  Ind.  83,  94. 


JUDGMENT. 

CHAPTER  XXII. 

JUDGMENT.(l) 


625 


SECTION. 

976.  Defined. 

977.  Classification.    . 

978.  Final  judgments. 

979.  Interlocutory  judgments. 

980.  Different    modes    of    obtaining 

judgment. 

1.  IJ»  ACTIONS  COMMENCED  BY  PROCESS. 

981.  On  general  verdict. 

98z.  On  issue  formed  in  abatement. 

983.  On  special  verdict. 

984.  On  special  fimlings  and  conclu- 

sions of  law. 

985.  On  answers  to  special  interroga- 

tories. 

986.  On  the  pleadings. 

987.  On  demurrer. 

988.  Where  plaintiff  is  barred  as  to 

part  of  the  defendants. 

989.  Against  part  of  plaintiffs  or  de- 

fendants. 

990.  In  actions  of  ejectment. 

991.  Where  there  is  a  set-off. 

992.  Judgment  on  default. 

993.  On  constructive  notice. 

994.  Judgment  in  rem  may  be  opened 

in  five  years. 

995.  Judgment  without  notice. 

996.  Judgment  without  defaulting  the 

defendant. 

2.    IN     AX    ACTION     COMMENCED     BY 
AGREEMENT. 

997.  Agreed  case. 

998.  Judgment  by  agreement. 


3.  BY  CONFESSION  WITHOUT  AN  ACTION. 

999.  Offer  to  allow  judgment. 
1000.  Offer  to  confess  judgment. 

(l)Forms  of  judgments,  Vol.  3,  pp.  439-474. 
40 


SECTION. 

1001.  Confession  of  judgment. 

1002.  Confession  by  attorney. 

1003.  The  judgment. 

FORM   OF   JUDGMENT. 

1004.  Generally. 

1005.  Arbitration  and  award. 

1006.  Attachment. 

1007.  Bastardy. 

1008.  Against    executors,    administra- 

tors and  guardians. 

1009.  Foreclosure  of  mortgages. 

1010.  Vendors'  liens. 

1011    Against  heirs  for  debt  of  ances- 
tor 

1012.  Judgment  without  relief. 

1013.  Against  public  officers  and  others 

acting  in  a  fiduciary  capacity 
— without  relief  or  stay. 

1014.  On  bonds,  written  undertakings 

and  recognizances. 

JUDGMENT    FOR   COSTS. 

10J5.  Recovered  in  civil  actions. 

1016.  Exceptions — recovery underfifty 

dollars. 

1017.  In  actions  for  damages  solely. 

1018.  Kelators  liable  for  costs. 

1019.  When  apportioned. 

1020.  Where  suits  can  be  joined — costs 

in  one  only. 

1021.  On   appeal    from  justice  of  the 

peace. 

1022.  On  offer  to  allow  cr  confess  judg- 

ment. 

1023.  Claims  against  estates. 

1024.  Disclaimer. 

1025.  Reversal  by  supreme  court. 

1026.  Adjudged  before  final  judgment. 


G26 


JUDGMENT. 


[CHAP. 


SECTION. 

1027.  Belongs  to  the  party  recovering 

judgment. 

1028.  Security  for  costs. 

1029.  Form  of  judgment  for  costs; 

HOTV   DEFECT   IN   FORM    REACHED. 

1030.  By  motion  in  the  court  below. 

1031.  Correcting  judgments. 

1032.  How     judgment     entered     and 

signed. 

EFFECT   OF   JUDGMENT. 

1033.  Merges  the  cause 'of  action. 

1034.  The  lien. 

1035.  Judgment  docket. 

1036.  Transcript  to  bind  real  estate. 

1037.  Transcript     of    justice     of    the 

peace. 

1038.  When  conclusive — collateral  at- 

tack. 

1039.  Effect    of    appeal     from    judg- 

ment. 

REPLEVIN   BAIL. 

1040.  The  statute. 

1041.  Is  a  judgment  confessed. 

1042.  What  judgments  repleviable. 

1043.  How  entered. 

1044.  Where  part  of  judgment  cred- 

itors are  sureties. 

ARREST    OF    JUDGMENT. 

1045.  For  what  causes -judgment  may 

be  arrested. 

1046.  Goes  to  the  whole  complaint. 

1047.  The  motion. 

1048.  Effect  of  arresting  judgment. 


SECTION. 

REVIEW  OF   JUDGMENTS. 

1049.  Causes  for  review. 

1050.  The  parties. 

1051.  The    pleadings  —  complaint   for 

error  of  law. 

1052.  The  trial.    " 

1053.  The  bond. 

1054.  The  judgment. 

1055.  When  proceeding  to  review  al- 

lowed. 

1056.  Effect  of.  review. 

VACATING    JUDGMENTS. 

1057.  How  and  for  what  causes. 

SATISFACTION    OF    JUDGMENTS. 

1058.  By  lapse  of  time. 

1059.  By  payment. 

1060.  By  levy  of  execution. 

1061.  By  the  sale  of  property. 

1062.  Entry   of   payment,    release    or 

satisfaction. 

1063.  Action  to  compel  an  entry  of  sat- 

isfaction. 

REVIVOR    OF    JUDGMENTS. 

1064.  Leave  to   issue   execution    after 

ten  years. 

1065.  By  or  against  executors  and  ad- 

ministrators unnecessary. 

1066.  Revivor  upon  death  of  judgment 

defendant. 

1067.  Defenses  in  actions  to  revive. 

ACTIONS    ON    JUDGMENTS. 

1068.  Are  debts  of  record,  and  may  be 

collected  by  suit. 

1069.  Defenses. 


976.  Defined. — A  judgment  is  "  the  decision  or  sentence  of  the 
law  pronounced  by  a  court  or  other  competent  tribunal,  upon  the 
matter  contained  in  the  record."3  The  distinction  which  formerly  ex- 
isted between  judgments  at  common  law  and  decrees  in  equity  is  unim- 
portant in  practice  under  the  code.  The  distinction  between  common- 
law  actions  and  suits  in  equity  is  abolished  so  far  as  the  practice  is  cou- 


(a)  Freeman  on  Judg.,  sec.  2;   Igluhart's  Prac.  and  PI.  263,  sec.  3. 


xxn.]  JUDGMENT.  627 

cerned,  and  although  the  term  decree  is  still  in  use  in  actions  that  were 
formerly  cognizable  in  courts  of  chancery,  it  is  unknown  to  the  code. 
To  constitute  a  judgment,  proper  words  should  be  used.  Thus  it  is 
said:  "To  constitute  a  valid  judgment,  the  word  'recover'  should  be 
used,  and  the  amount  of  the  recovery  should  be  stated,  where  a  money 
judgment  is  rendered ;  and  in  other  cases,  appropriate  words  should  be 
used,  having  reference  to  the  relief  granted."  b  The  statute  provides 
that  the  word  judgment  means  all  final  orders,  decrees,  and  determina- 
tions in  an  action;  also,  all  orders  upon  which  executions  may  issue.* 

977.  Classification. — At  common  law,  judgments  were  divided 
into  various  classes  or  divisions.0 

The  code  contains  no  definitions  or  classifications  of  the  different 
kinds  of  judgments.  The  distinction  between  final  and  interlocutory 
judgments  is  important  in  practice,  and  should  not  be  overlooked. 
Other  classifications  need  not  here  be  noticed. 

978.  Final  judgment. — A  final  judgment  is  one  which  puts  an  end 
to  the  controversy,  leaving  nothing  further  to  be  done  except  to  carry 
it  into  execution.     It  is  not  necessary,  however,  that  the  judgment 
should  put  an  end  to  the  cause  of  action  to  render  it  final.    It  is  enough 
if  it  disposes  of  the  action,  leaving  the  plaintiff  at  liberty  to  sue  again 
for  the  same  cause.*1 

Thus  a  judgment  of  dismissal  or  upon  demurrer  will  amount  to  a 
final  judgment,  but  the  plaintiff  may  renew  his  action,  except  where 
a  judgment  upon  demurrer  determines  the  merits  of  the  controversy.6 

The  sustaining  of  a  demurrer  is  not  a  final  judgment.  There  must 
be  a  judgment  of  the  court  upon  the  refusal  of  the  party  to  plead  fur- 
ther/ 

An  order  of  the  court,  in  final  settlement  of  the  administration  of 
an  estate  or  of  a  guardianship,  by  which  the  estate  is  fully  settled  and 
the  administrator  or  guardian  discharged,  is  a  final  judgment.8 

But  an  order  approving  a  partial  report  is  not.h 

(b)  Needham   v.   Gillasby,   49   Ind.         (f)  Brannock  ».   Stocker,   76    Ind. 
245.  673;  Slagle  v.  Bodmer,  58  Ind.  465. 

(a)  R.  S.  1881,  I  1285.  (g)  Angevine  r.  Ward,  66  Ind.  460; 

(c)  Freeman  on  Judg.,  g§  5,  6,  7.  Dufour  v.  Dufour,  28   Ind.  421 ;  San- 

(d)  Freeman  on  Judg.,  §§  12;  Reese  ders   v.   Loy,    61    Ind.   298;    Pate   v. 
v.  Beck,  9  Ind.  238.  Moore,  79  Ind.  20. 

(e)  Ante,  vol.  I.,  §  605.  (h)  Candy    r.    Han  more,    76     Ind. 

125. 


628  JUDGMENT.  '  [CHAP. 

So  of  the  approval  of  the  reports  of  an  assignee  of  an  insolvent 
debtor.' 

Nor  is  it  where  the  administrator  makes  his  final  report  and  is  dis- 
charged without  finally  settling  the  estate.-1 

An  order  overruling  or  sustaining  a,  motion  to  tax  costs,  after  the 
cause  has  terminated,  is  a  final  judgment.k 

But  not  when  the  cost  is  taxed  upon  an  interlocutory  order.1 

An  order  made  against  the  administrator  of  a  guardian  to  pay  the 
money  in  his  hands  into  court  for  the  use  of  the  ward  is  a  final  judg- 
ment.™ 

What  constitutes  the  final  judgment  in  a  proceeding  to  sell  real  es- 
tate by  an  administrator  or  guardian  may  admit  of  some  doubt.  It  is 
held  in  some  of  the  cases  that  it  is  not  the  order  to  sell,  but  the  com- 
pletion of  it  by  the  order  confirming  the  sale." 

A  like  rule  prevails  in  actions  fcr  the  partition  of  real  estate.0 

These  decisions  rest  upon  the  ground  that,  until  the  sale  is  confirmed, 
the  court  may  set  it  aside  for  good  cause  shown;  therefore,  the 
order  authorizing  the  sale  is  not  final. 

The  allowance  of  a  claim  against  an  estate  by  the  administrator  is 
not  final.  The  court  may,  notwithstanding  the  allowance,  require  ad- 
ditional evidence  and  render  a  different  judgment.1* 

The  present  statute  differs  materially  from  the  one  under  which  the 
case  cited  was  decided.  Now  the  administrator  or  executor  is  required 
to  report  to  the  court  on  the  first  day  of  each  term  such  claims  as  are 
allowed,  and  it  is  made  the  duty  of  the  court,  "if  no  objection  appear 
or  be  shown  thereto,  to  enter  an  allowance  for  the  amount  of  the  claim, 
with  six  per  cent  interest  thereon  from  the  date  of  the  allowance,"  and 
an  allowance  may  thus  be  made  for  a  portion  of  a  claim,  with  the  con- 
sent of  the  claimant.*1 

This  order  of  the  court  entering  the  allowance  is  "operative  as  an 
adjudication  of  the  validity  and  amount  of  the  claim,"  and  constitutes 
the  final  judgment/ 

(i)  Cravens  v.  Chambers,  55  Ind.  5.  horn,  13  J.nd.  438;  see  also  Seward  v. 

(j)  Parsons  v.  Milford,  67  Ind.  489;  Clark,  67  Ind.  289. 

Lang  v.  The  State,  67  Ind.  577.  (o)  Griffin   v.  Griffin,  10   Ind.   170; 

(k)  Hill  v.  Shannon,  68  Ind.  470.  Berry  v.  Berry,  22  Ind.  275;  Hunter  r. 

(1)  W aimer  v.  Shulenberger,  23  Ind.  Miller,  17  Ind.  88;  Davis  v.  Davis,  36 

454.                                                               •  Ind.  160;  Kennick  v.  Chandler,  59  Ind. 

(m)  Covey  v.  Neff,  63  Ind.  391.  354. 

(n)  Staley   v.  Dorset,  11    Ind.   367;  (p)  Fisous  r.  Bobbins,  GO  Ind.  100. 

Love  v.  Mikals,  12  Ind.  439;  Simpson  (q)  R.  S.  1881,  §  2319. 

v.  Pearson,  31  Ind.  1 ;  Crews  v.  Cleg-  (r)  II.  S.  1881,  §  2320. 


xxn.]  JUDGMENT.  G29 

There  can  be  no  final  judgment  rendered  while  there  is  an  issue  of 
law  or  fact  pending  undisposed  of. 

979.  Interlocutory  judgments.— Interlocutory  judgments,   or 
"orders,"  as  they  are  more  frequently  termed,  have  been  variously  de- 
fined.8 

The  difference  between  a  final  and  an  interlocutory  decree  has  been 
thus  stated : 

"  If,  after  a  decree  has  been  entered,  no  further  questions  can  come 
before  the  court,  except  such  as  are  necessary  to  be  determined  in  car- 
rying the  decree  into  effect,  the  decree  is  final ;  otherwise,  it  is  inter- 
locutory. But  an  order  or  decree  made  for  the  purpose  of  carrying  a 
judgment  or  decree  already  entered  into  effect  is  not  a  final  judgment 
or  decree."* 

It  is  a  judgment  or  order  that  does  not  terminate  the  action,  but 
leaves  something  yet  to  be  done  by  the  court  to  determine  the  ultimate 
rights  of  the  parties. 

Thus  it  is  held  that  the  order  fixing  the  interests  of  the  owners  in  a 
partition  proceeding,  and  appointing  commissioners  to  make  partition 
or  sale,  is  interlocutory.11 

So  of  orders  granting  temporary  injunctions  or  restraining  orders.7 

And  setting  aside  a  default  or  relieving  a  party  from  a  judgment 
taken  against  him  through  surprise  or  his  excusable  neglect. w 

Or  orders  to  sell  real  estate  by  administrators,  executors,  or  guard- 
ians.1 

The  appointment  of  receivers,  or  orders  referring  matters  in  contro- 
versy to  a  master  commissioner  are  interlocutory. 

Many  others  might  be  named,  but  these  will  serve  to  illustrate  the 
difference  between  final  and  interlocutory  judgments  or  orders. 

980.  Different  modes  of   obtaining  judgment. — There  are 
three  different  modes  of  proceeding  by  which  judgment  may  be  ob- 
tained : 

1.  In  an  action  commenced  by  process. 

2.  In  actions  commenced  by  agreement. 

(s)  Freeman  on  Judg.,  §§  29,  31.  (v)  Slagle  v.  Bodmer,  58  Ind.  465; 

(t)  Freeman  on  Judg.,  §  36.  Fisk  v.  The  Patriot  and  Barkworks  Tp. 

(u)  Griffin   ».  Griffin,  10  Ind.  170;  Co.,  54  Ind.  479. 

Berry  v.  Berry,  22  Ind.  275;  Hunter  (w)  Martindale  v.   Brown,  18   Ind. 

c.Miller,  17  Ind.  88 ;  Davis  v.  Davis,  284;  Spaulding  v.  Thompson,  12  Ind. 

36  Ind.  160;  Rennick  r.  Chandler,  59  477. 

Ind.  354.  (x)  Ante,  §978. 


630  JUDGMENT.  [CHAP. 

3.  By  confession,  without  an  action.7 
These  will  be  considered  in  their  order. 

I.   IN   AN   ACTION   COMMENCED   BY   PROCESS. 

981.  On  general  verdict. — "  When  a  trial  by  jury  has  been  had 
and  a  general  verdict  rendered,  the  judgment  must  be  in  conformity  to 
the  verdict." 7 

The  verdict  of  a  jury  is  not  effective  without  a  judgment  thereon.* 

Nor  can  a  judgment  upon  an  issue  of  fact  stand  without  a  finding 
of  the  court  or  the  verdict  of  a  jury  to  support  it.b 

Therefore  the  two  must  concur  and  conform  the  one  to  the  other  to 
constitute  a  valid  and  binding  adjudication  of  the  questions  of  fact 
presented  in  the  record.0 

It  is  intimated  in  some  of  the  decided  cases  that  the  judgment  may 
be  varied  from  the  verdict  of  a  jury  as  to  the  amount  of  the  recovery, 
to  make  the  amount  of  the  judgment  correspond  with  admissions  in 
the  pleadings. d 

The  cases  are  not  positively  decided,  and  to  allow  such  a  course 
would  be  bad  practice.  The  fact  that  the  verdict  was  for  too  much  or 
too  little,  in  the  judgment  of  the  court,  as  shown  by  admissions  in  the 
pleadings,  would  afford  sufficient  cause  for  a  new  trial;  but  the  verdict 
should  not  be  allowed  to  stand  for  one  amount  and  a  judgment  be  ren- 
dered for  another. 

It  was  held  formerly  that  interest  could  not  be  allowed  on  the  ver- 
dict before  the  rendition  of  judgment.6 

But  the  present  statute  provides  that  interest  on  judgments  shall  be 
from  the  date  of  the  return  of  the  verdict  or  finding  of  the  court. f 

The  judgment  should  be  for  the  amount  found  by  the  verdict,  not 
including  the  interest,  as  to  include  it  in  the  judgment  would  be  to 
compound  the  interest.  In  arriving  at  the  amount  due  upon  the  judg- 
ment, the  interest  should  be  computed  from  the  date '  of  the  return  of 
the  verdict. 

982.  On  issue  formed  in  abatement. — Under  the  present  stat- 
ute, an  issue  formed  by  an  answer  in  abatement  must  be  first  tried.8 

(y)  Kennard  v.  Carter,  64  Ind.  31.  dyke,  Marmon   &   Co.  v.  Dickson,  76 

(z)  K.  S.  1881,  §  564.  Ind.  188. 

(a)  Shirk  v.  Wilson,  13  Ind.  129.  (d)  Meredith  v.  Lackey,  14  Ind.  529; 

(b)  Nicholson    v.    Caress,    76    Ind.  Meredith  v.  Lackey,  16  Ind.  1. 

24.  (e)  Blickstaff  v.  Perrin,  27  Ind.  527. 

fc)  Bowles    v.   Stout,   60   Ind.  267;  (f)  K.  S.  1881,  §  5199. 

Mitchell   v.  Geisendorf,  44   Ind.  358;  (g)  K.  S.  1881,  §365;  ante,   vol.  I., 

Taylor  v.  Taylor,  64   Ind.  356;  Nor-  §560. 


XXII.]  JUDGMENT.  631 

It  is  held  in  some  of  the  earlier  cases  that,  where  the  issue  is  decided 
in  favor  of  the  plaintiff,  the  judgment  should  be  peremptory,  quod  re- 
cuperet.^ 

But  where  the  judgment  was  on  demurrer  to  a  plea  in  abatement,  it 
was  held  it  should  not  have  been  peremptory,  but  interlocutory,  quod 
respondeat  ouster.1 

The  present  statute  provides  in  express  terms  that.  "If  the  issue 
be  found  against  the  answer,  the  judgment  must  be  that  the  party 
plead  over  and  against  him  for  all  costs  of  the  action  up  to  that  time."j 

This  statute  so  changes  the  common-law  rule  of  pleading  that  the 
judgment  on  an  issue  formed  on  an  answer  in  abatement,  whether  the 
issue  be  one  of  law  or  of  fact,  must  be  that  the  defendant  plead  over 
to  the  merits. 

If  the  issue  be  decided  against  the  plaintiff,  it  must  be  that  the  ac- 
tion abate,  and  has  the  effect  to  terminate  the  present  action.  The 
common-law  form  of  judgment  was  that  the  writ  or  declaration  be 
quashed.* 

If  the  complaint  is  amendable,  the  plaintiff  should  be  granted  leave 
to  amend,  so  as  ta  avoid  the  matter  in  abatement.1 

983.  On  special  verdict. — "Where  the  verdict  is  special,  or 
where  there  has  been  a  special  finding  on  particular  questions  of  fact, 
the  court  shall  render  the  proper  judgment."111 

The  office  and  form  of  special  verdicts,  and  the  practice  in  connec- 
tion therewith,  have  been  considered." 

It  is  not  necessary  that  a  special  verdict  shall  find  the  amount  due 
the  plaintiff.  The  verdict  may  state  the  facts  found,  leaving  the  court 
to  determine  whether  the  plaintiff  or  defendant  is  entitled  to  recover, 
and  if  so,  how  much.  Where  this  is  done,  the  judgment  fixes  the 
rights  of  the  parties  under  the  facts  found.  But  it  is  necessary,  in 
this  class  of  cases,  as  in  all  others,  that  the  judgment  shall  conform  to 
the  verdict,  and  if  the  judgment  rendered  is  not  "  proper,"  this  will  be 
cause  for  reversal.  Therefore,  where  the  amount  the  plaintiff  is  entitled 
to  recover  is  fixed  by  the  special  verdict,  if  the  law  is  with  him,  leaving 
the  court  to  determine  whether  he  is  entitled  to  recover  at  all  upon  the 
facts  found,  the  court,  if  it  is  adjudged  that  he  is  entitled  to  recover, 

(h)  John  v.  Clayton,  1  Blkf.  54;  At-  ( j)   K.  S.  1881,  3  365. 

kinson  v.  The  State  Bank,  5   Blkf.  84;  (k)  Stephen  PI.,  p.  107. 

Neal  v.  Mills,  5  Blkf.  208.  (1)  Gould's  PI.,  chap.  5,  §  159. 

(i)  Lambert  v.  Lagow,  1  Blkf.  388;  (m)  R.  S.  1881,  §  565. 

Atkinson  v.  The  State  Bank,  5  Blkf.  (n)  Ante,  vol.  I.,  §  849  et.  seq. 
84;  Clarke  v.  Hite,  5  Blkf.  167. 


632  JUDGMENT.  [CHAP. 

must  be  governed  by  the  amount  fixed  iu  the  verdict.  So,  where  the 
verdict  concluded,  "  If,  upon  the  above  facts,  the  court  shall  be  of  the 
opinion  that  the  law  is  with  the  plaintiff,  we  find  for  the  plaintiff  one 
hundred  and  seventy-five  dollars  ;  but  if  the  court  shall  be  of  the 
opinion  that  the  law  is  with  the  defendants,  we  find  for  the  defend- 
ants," it  was  held  that  the  amount  of  the  judgment  could  not  exceed 
that  fixed  by  the  special  verdict.0 

984.  On  special  findings  and  conclusions  of  law. — The  stat- 
ute provides  that,  at  the  request  of  either  party,  the  court  shall  find 
the  facts  specially,  and  the  conclusions  of  law  thereon. p 

The  conclusions  of  law  do  not  constitute  the  judgment  of  the  court, 
as  is  sometimes  supposed.  The  finding  of  facts  and  conclusions  thereon 
are  the  basis  of  the  judgment,  and  it  must  be  "  entered  accordingly."*1 

The  practice  relating  to  trials  by  the  court  has  been  fully  considered 
elsewhere/ 

The  judgment  must  conform  to  the  conclusions  of  law.  If  the  con- 
clusions of  law  are  not  supported  by  the  findings,  the  question  is  pre- 
sented by  an  exception  to  the  conclusions.  If  the  finding  of  facts  is 
not  sustained  by  the  evidence,  or  is  contrary  to  law,  these  are  causes 
for  a  new  trial.9 

If  the  findiug  of  facts  is  sustained  by  the  evidence,  and  the  conclu- 
sions of  law  are  supported  thereby,  judgment  follows  as  of  course.  If 
the  special  finding  is  made  without  a  request  from  either  party,  or  if  it 
is  not  signed  by  the  judge,  it  must  be  treated  as  a  general  finding,* the 
conclusions  of  law  be  disregarded,  and  judgment  rendered  on  the  gen- 
eral verdict. 

Where  the  findings  support  but  one  paragraph  of  the  complaint, 
judgment  must  be  rendered  on  such  paragraph  alone,  and  can  not  ex- 
ceed the  amount  claimed  therein." 

It  has  been  Jield  that,  where,  from  the  special  finding  of  facts,  it 
appears  that  a  mistake  has  been  made  in  the  conclusions  of  law  as  to 
the  amount  of  recovery,  and  the  judgment  is  for  the  correct  amount, 
there  is  no  available  error. v 

This  decision  may  have  been  proper  in  that  case,  but  it  will  not  do 

(o)  Mitchell  v.  Geisendorff,  44  Ind.  916;    Lockwood  v.  Dills,  74  Ind.  56; 

368.  Love  v.  Geyer,  74  Ind.  12. 

(p)  K.  S.  1881,  §551;  ante,  vol.  I.,  (t)  Caress  v.  Foster,    62   Ind.   145; 

g  803.  ante,  vol.  I.,  §  804. 

(q)  B.  S.  1881,  §  551.  (u)  Helms   v.  Kearns,  40  Ind.  124; 

(r)  Ante,  vol.  1.,  \  803  et  seq.  ante,  vol.  I.,  §  807.      . 

.      (s)  Ante,   vol.   I.,  §§  809,   810,  914,  (v)  Sanders  v.  Scott,  68  Ind.  130. 


XXII.]  JUDGMENT.  G33 

to  apply  generally.  The  effect  of  it  is  to  disregard  the  conclusions  of 
law  and  render  judgment  on  the  special  finding,  which  would,  in  many 
cases,  deprive  a  party  of  the  benefit  of  his  exception  to  the  conclusions 
of  law.  In  the  case  cited,  it  is  placed  on  the  ground  that  there  was  a 
mistake  in  the  conclusions  of  law,  which  was  apparent  on  their  face  as 
shown  by  the  figures. 

985.  On  answers  to  special  interrogatories. — The  practice  is 
materially  different  where  the  special  findings  of  fact  are  by  a  jury. 
In  such  case  there  must  also  be  a  general  verdict." 

The  special  findings  control  the  general  verdict  when  inconsistent 
therewith.1 

It  follows  that  there  may,  in  this  class  of  cases,  be  a  judgment  on 
either  the  general  verdict  or  the  special  findings,  depending  upon 
whether  they  are  inconsistent  or  not.  But  in  order  to  entitle  either 
party  to  a  judgment  on  the  special  findings,  he  must  move  therefor; 
otherwise  the  judgment  must  be  rendered  on  the  general  verdict. y 

The  motion  for  judgment  need  not  be  in  writing,  and  an  exception 
to  the  ruling  of  the  court  thereon  presents  the  question  to  the  supreme 
court  without  a  bill  of  exceptions.2 

It  was  held  in  an  earlier  case  that  a  bill  of  exceptions  was  neces- 
sary.8 

But  this  case  is  expressly  overruled  in  Salander  v.  Lockwood. 

In  either  case,  the  judgment  must  conform  to  the  finding  upon 
which  it  is  based,  whether  the  general  verdict  or  the  special  findings  of 
fact.b 

986.  On  the  pleadings. — "  When,  upon  the  statements  in  the 
pleadings,  one  party  is  by  law  entitled  to  judgment  in  his  favor,  judg- 
ment shall  be  so  rendered  by  the  court,  though  a  verdict  has  been 
found  against  such  party."0 

Where  the  allegations  contained  in  the  plaintiff's  complaint  are  not 
denied  or  avoided  by  the  defendant's  answer,  he  may  demand  judg- 
ment on  the  pleadings,  notwithstanding  there  is  a  verdict  or  finding 
against  him.d 

(w)  Ante,  vol.  I.,  §  862,  and  author-  (a)  Shaw   r.   The    Merchants'    Nat. 

ities  cited.  Bank,  60  Ind.  83. 

(x)  Ante,  vol.  I.,  §  861.  (b)  11.  S.  1881,  §§  564,  565. 

(y)  Ante,  vol.  I.,  §  864,  and   cases  (c)  R.  S.  1881,  §  566. 

cited.  (d)  Fitch  v.  Polk,  5  Blkf.  86;    The 

(z)  The  Terre  Haute,  etc.,  R.  R.  Co.  Board  of  Trustees  of  the  Wabash  and 

v.   Clark,    73   Ind.   168;    Salander    v.  Erie   Canal   v.   Mayer,   10    Ind.   400; 

Lockwood,  66  Ind  28~>.  Martindale    v.    Price,    14    Ind.    115; 

Needham  v.  Webb,  20  Ind.  213. 


C34  JUDGMENT.  [CHAP. 

Or  he  may  have  judgment  in  such  case  without  going  to  trial. e 

But  where  there  is  one  or  more  good  paragraphs  of  answer,  there 
can  not  be  judgment  for  the  plaintiff  on  the  pleadings.' 

A  party  may  have  judgment  in  his  favor  where  the  pleading  of  his 
adversary  admits  his  cause  of  action  or  defense,  or  confesses  and  fails 
to  avoid  the  same.g 

And  wrhere  the  defendant  pleads,  but  his  answer  is  insufficient,  the 
plaintiff  is  entitled  to  judgment  on  the  pleadings  after  verdict.h  The 
plaintiff,  by  failing  to  demur  and  going  to  trial  on  an  issue  formed 
by  his  reply,  does  not  waive  his  right  to  judgment  after  verdict,  where 
the  answer  is  insufficient,  although  the  allegations  of  the  answer  are 
fully-  proved. 

If  the,  plain  tiff's  complaint  contains  no  cause  of  action,  the  defend- 
ant is  entitled  to  a  judgment  in  his  favor,  notwithstanding  the  verdict 
is  against  him.' 

But  the  better  practice  in  such  a  case  is  to  move  in  arrest  of  judg- 
ment, on  the  ground  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  caui-e  of  actionJ 

The  rule  that  a  party  may  demand  judgment  on  the  pleadings  after 
verdict  for  the  want  of  a  pleading  on  the  part  of  his  adversary,  does 
not  apply  to  the  defendant  on  the  failure  of  the  plaintiff  to  reply. 

The  earlier  cases  were  to  the  effect  that  a  failure  to  reply  entitled 
the  defendant  to  judgment  non  obstante  veredicto,  as  will  be  seen  by  the 
cases  cited  above  ;  but  the  later  cases  hold  that,  in  order  to  avail  him- 
self of  the  failure  of  the  plaintiff  to  reply  to  his  answer,  the  defendant 
must  move  for  judgment  in  his  favor  at  the  time,  and  that,  by  going 
to  trial,  he  waives  his  right,  and  his  answer  must  be  treated  as  if  re- 
plied to  by  a  general  denial.k 

987.  On  demurrer. — A  party  against  whom  a  demurrer  has  been 
sustained  may  have  leave  to  amend.1 

(e)  Hunt  v.  Mansur,  5  Blkf.  214.  (i)  The  Indianapolis,  etc.,  R.  R.  Co. 

(f)  Huff  v.  Cole,  45  Ind.  300;  Stev-  v.  Davis,  10  Ind.  398;    The  Jefferson- 
ens  v.  Overturf,  62  Ind.  331;  Cox  v.  ville,  etc.,  Association  v.  Fisher,  7  Ind. 
Vickers,  35  Ind.  27.  699. 

(g)  Berry  v.  Borden,   7    Blkf.  384;  (j)   Post,  §  1045. 

Pomeroy  v  Burnett,  8  Blkf.  142;  The  (k)  Preston  v.  Sandford,  21  Ind.  156; 

New  Albany  Plank  R.  Co.  v.  Stallcup,  Train  v.  Gridley,  36  Ind.  241 ;  Aston  v. 

62  Ind.  345.  Wallace,  43  Ind.  468;  Hiatt  v.  Renk 

(h).  McClosky  v.  The  Indianapolis,  64  Ind.  590;   Locke  v.  The  Merchants' 

etc.,  Union,  67  Ind.  86;  The  Western  Nat.  Bank,  66  Ind.  353;  ante,  vol.  I, 

Union    Telegraph    Co.    v.   Fenton.    52  §§  693,  736;   Buchanan  v.  Berkshire  L 

Ind.  1 ;  Dorman  v.  The  State,  56  Ind.  Ins.  Co.,  96  Ind.  610. 

454.  (1)  Ante,  Vol.  1,  §  701. 


XXII.]  JUDGMENT.  G35 

If  he  does  not  amend,  but  elects  to  abide  the  ruling  of  the  court, 
judgment  should  be  rendered  against  him.m 

If  the  demurrer  is  to  the  plaintiff's  complaint,  judgment  should  be 
given  the  defendant  for  costs. 

If  to  the  answer  of  the  defendant,  the  court  must  proceed  to  assess 
the  damages,  the  effect  of  judgment  against  the  defendant  on  demurrer 
being  the  same  in  effect  as  a  judgment  for  the  want  of  an  answer." 

A  demurrer  to  the  complaint  does  not  raise  the  question  of  conse- 
quential damages.0 

Judgment  can  not  be  rendered  against  either  party  on  sustaining  a 
demurrer  to  one  paragraph  of  his  pleading,  if  there  are  other  para- 
graphs undisposed  of.  The  demurrer  must  be  sustained  to  the  whole 
pleading,  whether  in  one  or  more  paragraphs,  to  entitle  his  adversary 
to  judgment.1' 

But  where  the  party  permits  judgment  to  be  taken  against  him 
without  objection  or  exception,  and  does  not  demand  a  trial  on  the  re. 
maining  paragraph,  he  can  not  raise  the  question  in  the  supreme  court 
for  the  first  time.*1 

Although,  on  appeal  from  a  justice  of  the  peace,  the  statute  provides 
that  all  defenses,  except  the  statute  of  limitations,-  set-off,  and  matter 
in  abatement,  may  be  given  in  evidence  without  pleading,  if  the  de- 
fendant sees  proper  to  plead  specially,  and  a  demurrer  is  sustained  to 
his  answer,  or  if,  upon  his  demurrer  to  the  reply  thereto  being  over- 
ruled, he  abides  the  demurrer  and  allows  judgment  to  be  taken  against 
him  thereon,  without  demanding  a  trial,  he  will  be  deemed  to 
have  waived  a  trial,  notwithstanding  he  might  have  put  the  plaintiff 
to  the  proof  of  his  complaint  without  any  pleading  on  his  part.r 

Demurrer  overruled. — The  statute  provides:  "The  judgment 
upon  overruling  a  demurrer  shall  be  that  the  party  plead  over,  and  the 
answer  or  reply  shall  not  be  deemed  to  overrule  the  objection  taken  by 
demurrer.  But  no  objection  taken  by  demurrer  and  overruled  shall 
be  sufficient  to  reverse  the  judgment,  if  it  appear  from  the  whole  rec- 
ord that  the  merits  of  the  cause  have  been  fairly  determined.  If  a 

(m)  Mangeot  v.  Block,  11  Ind.  244.          (p)  Ewing  r.  Codding,  5  Blkf.  433; 

(n)  R.  S.  1881,  §  573;  The  Pullman  Seitsv.Sinel,  62  Ind. 253;  Poock  v.  The 

Palace  Car  Co.  v.  Taylor,  65  Ind.  153;  Lafayette  Building  Association,  71  Ind. 

Hodson  v.  Davis,  43  Ind.  258.  357. 

(o)  The  Western   Union  Tel.  Co.  v.         (q)  Poock  v.  The  Lafayette  Building 

Hopkins,  49  Ind.  223 ;  Busk  Practice,  Association,  71  Ind.  357. 
187.  (r)  Roberts  v.  Norris,  67  Ind.  886. 


G36  JUDGMENT.  [CHAP. 

party  fail  to  plead  after  the  demurrer  is  overruled,  judgment  shall  be 
rendered  against  him  as  upon  a  default."8 

When  the  party's  demurrer  is  overruled,  he  should  either  plead  over, 
or,  if  he  is  authorized  by  the  statute  to  controvert  the  cause  of  action 
of  liis  adversary,  or  prove  a  defense  without  pleading,  he  should  de- 
mand a  trial.  By  acquiescing  in  the  ruling  of  the  court  on  the  demur- 
rer, Avithout  pleading  further  or  demanding  a  trial,  he  must  be  regarded 
as  standing  upon  the  court's  ruling,  thereby  waiving  any  further  action 
by  the  court,  and  judgment  may  be  taken  against  him,  under  this  sec- 
tion, as  upon  a  default.1 

The  statute  expressly  provides  that,  by  pleading  over,  the  party  does 
not  waive  any  error  that  may  have  been  committed  in  overruling  his 
demurrer,  if  the  proper  exception  is  taken." 

No  formal  judgment  that  the  party  plead  over  is  rendered  in  prac- 
tice/ but  it  is  expressly  required  by  the  terms  of  the  statute.  It  is 
upon  the  failure  to  comply  with  this  judgment  that  final  judgment  as 
upon  default  is  authorized. 

Where  the  demurrer  overruled  is  to  the  complaint,  the  damages 
must  be  assessed  by  the  court  as  in  other  cases.w 

Where  the  parties  agree  that  the  submission  of  a  demurrer  to  the 
complaint  shall  be  a  submission  of  the  cause,  and  the  decision  thereon 
a  decision  of  the  action  on  its  merits,  a  judgment  rendered  on  the  de- 
murrer is  final,  and,  if  sustained,  the  plaintiff  is  not  entitled  to 
amend.1 

In  one  case  it  has  been  held  that,  in  an  action  to  be  relieved  from  a 
judgment  on  the  ground  that  the  same  was  obtained  through  the  de- 
fendant's mistake  or  excusable  neglect,  a  demurrer  to  the  complaint  is 
tantamount  to  a  submission  of  the  cause  on  its  merits.7 

If  this  can  be  regarded  as  the  law  in  any  case  of  this  kind  (which 
may  be  doubted),  it  certainly  can  not  be  in  all  cases.  A  question  of 
fact  may  arise  upon  the  allegation  of  diligence  that  could  not  be  pre- 
sented by  demurrer,  as  the  defendant  by  his  demurrer  is  bound  by  the 
facts  as  stated.  He  should  have  the  right,  after  his  demurrer  is  over- 
ruled, to  controvert  the  allegations  of  fact  contained  in  the  complaint.21 

Taking  the  case  of  Nord  v.  Marty  as  an  example :  it  was  alleged  in 
the  complaint  that  a  certain  conversation  had  taken  place  between  the 
defendant  and  plaintiff's  attorney  in  the  original  action,  and  that  the 

(s)  R.  S.  1881,  2  345.  (v)  Sage  v.  Matheny,     14  Ind.  369. 

(t)  Roberts  v.  N orris,  67   Ind.  386;  (w)   Ante,  vol.  I.,  §455. 

Mangeot  v.  Block,  11  Ind.  244 ;  Sage  v.  (x)  S.lagle  r.  Bodmer,  75  Ind.  330. 

Matheny,  14  Ind.  369.  (y)  Nord  v.  Marty.  5(1  Ind.  531. 

(u)  R.  S.  1881,  \  345.  (z)  Slagle  v.  Bodmer,  75  Ind.  3  :0. 


JUDGMENT.  637 

defendant  went  to  Owensboro,  Ky.,  on  business  requiring  his  attention, 
and  before  he  could  return  home  the  Ohio  river  was  frozen  up,  which 
prevented  his  return  in  time  to  attend  the  court. 

These  were  certainly  traversable  facts  that  might  have  been  dis- 
proved by  the  plaintiff. 

To  hold  that  the  submission  of  the  demurrer  was  a  submission  of 
the  cause  on  its  merits  was  to  deprive  him  entirely  of  the  right  to 
prove  that  the  facts  alleged  as  an  excuse  for  the  failure  to  be  present 
at  the  trial  did  not  exist. 

It  is  believed  that  the  supreine  court  did  not  intend  by  the  language 
used  to  lay  down  this  broad  rule.  But  it  is  difficult  to  see,  from  what 
is  disclosed  in  the  opinion,  how  the  rule  could  properly  have  been  ap- 
plied in  that  case  with  any  more  propriety  than  in  any  other  case  seek- 
ing the  same  relief. 

To  present  any  question  on  appeal  upon  the  refusal  of  the  court  to  ren- 
der judgment  on  demurrer,  a  motion  must  be  made  for  such  judgment, 
and,  if  overruled,  the  proper  exception  must  be  taken  at  the  time." 

988.  Where  plaintiff  is  barred  as  to  part  of  the  defend- 
ants.— Where  the  plaintiff  is  barred  by  the  statute  of  limitations  as 
against  a  part  of  the  defendants,  he  may  still  prosecute  his  action  and 
recover  judgment  against  those  still  liable.b 

This  may  occur  where  the  operation  of  the  statute  is  avoided,  as  to 
one  of  the  parties,  by  a  new  promise.  The  new  promise  by  one  joint 
contractor  does  not  affect  the  liability  of  the  other.0 

The  plaintiff  must  join  all  of  tlie  parties,  and  if  any  plead  the 
statute  of  limitations  successfully,  judgment  should  be  rendered  in 
their  favor,  but  the  plaintiff  should  have  judgment  against  the  other 
defendants. 

989.  Against  part  of  plaintiffs  or  defendants. — The  statute 
provides  :     "  Sec.  568.     Judgment  may  be  given  for  or  against  one  or 
more  of  several  plaintiffs,  and  for  or  against  one  or  more  of  several  de- 
fendants ;  and  it  may,  when  the  justice  of  the  case  requires  it,  deter- 
mine the  ultimate  rights  of  the  parties  on  each  side  as  between  them- 
selves." 

"  Sec.  50U.  In  a  suit  against  several  defendants,  the  court  may,  in 
its  discretion,  render  judgment  against  one  or  more  of  them,  leaving 
the  action  to  proceed  against  the  others  whenever  a  several  judgment 
is  proper." 

(a)  Lammers  v.  Balfe,  41  Ind.  218.  (c)  Ante,    vol.    I.,   \  289;    Kirk   ». 

(b)  R.  S.  1881,  §  5G7.  Hiatt,  2  Ind.  322. 


638  JUDGMENT.  [CHAP. 

"  Sec.  570.  Though  all  the  defendants  have  been  summoned,  judg- 
ment may  be  rendered  against  any  of  them  severally,  when  the  plaintiff 
would  be  entitled  to  judgments  against  such  defendants  if  the  action 
had  been  against  them  severally."  d 

The  practice  where  some  of  the  defendants  in  a  joint  action  have 
not  been  served,  or  where  there  is  a  return  of  not  found,  has  been  con- 
sidered.8 

It  is  held  that  where  too  many  plaintiffs  join  a  demurrer  for  want  of 
sufficient  facts  will  reach  the  defect,  and  the  demurrer  must  be  sus- 
tained as  against  all  of  the  plaintiffs,  where  a  cause  of  action  is  shown 
in  favor  of  a  part  of  them  only.f 

It  must  follow  that  a  judgment  on  demurrer  in  such  case  against 
the  plaintiffs  must  be  against  all  of  them  and  can  not  be  severed.  I 
have  attempted  to  show  elsewhere  that  this  rule,  though  well  estab- 
lished by  authority,  is  inconsistent  with  the  general  provisions  of  the 
code,  and  especially  the  section  under  consideration^ 

Sec.  568  is  not  confined  by  its  terms  to  any  particular  kind  of  action, 
and  applies  to  both  plaintiffs  and  defendants.  So  if  upon  the  trial  a 
cause  of  action  is  shown  in  a  part  of  the  plaintiffs  and  a  part  not, 
whether  they  sue  as  joint  obligees  or  otherwise,  the  judgment  should  be 
rendered  in  favor  of  those  in  whom  a  cause  of  action  is  shown  and 
against  the  others.  The  same  rule  should  be  applied  to  the  defendants. 
Although  the  plaintiffs  elect  to  treat  them  as  joint  obligors,  if  the 
proof  shows  that  a  part  are  not  liable  at  all,  judgment  should  be  ren- 
dered accordingly.11 

These  sections  do  not  change  tire  common-law  rule  that  parties  jointly 
liable  must  be  jointly  sued,  and  that  a  judgment  against  one  joint 
obligor  merged  the  cause  of  action  and  released  the  other.1  But  at 
common  law,  if  the  plaintiff  elected  to  treat  the  contract  as  joint  and 
the  general  issue  was  pleaded,  he  was  bound  to  prove  a  joint  liability 
or  fail  in  his  action.  These  sections  change  this  rule.  Although  the 
plaintiff  alleges  the  liability  of  the  defendants  to  be  joint,  if  upon  the 
trial  the  proof  shows  their  liability  to  be  several,  or  that  part  are  not 

(d)  K.  S.  1881,  \\  568,  569,  570.  Whitaker,  36  Ind.  509 ;  The  Louisville, 

(e)  Ante,  vol.  I.,  §§  443,  446.  etc.,  K.  W.  Co.  v.  Duvall,  40  Ind.  246; 

(f)  Ante,    vol.   I.,  §§  101,   102,  354,     Stafford  v.  Nutt,  51  Ind.  535;  Graham 
482.  v.  Henderson,  35  Ind.  195;   Blodget  v. 

(g)  Ante,  vol.  I.,  §§  101,  102.  Morris,    14    N.    Y.    482 ;    Murray    v. 
(h)  Draper  v.  Vanhorn,  12  Ind.  352;     Ebright,  50  Ind.  362. 

Douglass   v.    Rowland,   11    Ind.   554;         (i)  Erwm   v.  Scotten,  40  Ind.   389; 
Hubbell  v.  Woolf,  15  Ind.  204 ;  Cutchen     Murray  v.  Ebright,  50  Ind.  362. 
v.  Coleman,  13  Ind.  568;   Carmien  v. 


xxn.]  JUDGMENT.  639 

liable,  he  does  not  fail  in  his  action.  The  judgment  must  be  rendered 
in  accordance  with  the  proof.  The  court  has  chancery  powers,  and 
may  adapt  its  judgment  to  the  rights  and  liabilities  of  the.parties. 

Thus  it  is  said:  "Under  our  present  code  the  court  may  render 
judgment  for  one  of  several  joint  plaintiffs  and  against  the  others,  or 
;i  larger  sum  for  one  and  a  less  one  for  the  others  ;  and  so  of  the  de- 
fendants. The  court  possesses  chancery  powers  in  adapting  its  judg- 
ments to  the  rights  of  the  parties."j 

Again  :  "If  defendants  were  jointly  sued  at  common  law,  and 
wished  to  deny  such  joint  liability,  their  course  was  to  plea-l  the  gen- 
iTiil  issue,  and  thus  put  the  plaintiff  to  the  proof  of  the  liability  as 
alleged,  failing  in  which  the  plaintiff  failed  in  his  action.  Under  the 
code,  a  general  denial  puts  the  plaintiff  upon  the  proof  of  the  joint 
liability,  if  he  would  obtain  a  joint  judgment.  But  if  he  do  not 
prove  the  joint  liability,  it  does  not  follow  that  the  plaintiff  wholly 
fails  in  his  action.  The  code  has  changed  the  common-law  rule  as  it 
was  in  actions  at  law,  and  has  made  it  like  the  common- law  rule  in 
suits  in  chancery.  It  provides  that  judgment  may  be  given  for  or 
against  one  or  more  of  several  plaintiffs,  and  for  or  against  one  or  more 
of  several  defendants."1"  The  same  rule  applies  in  justices' courts.1 

990.  In  actions  of  ejectment. — We  have  a  similar  provision  in 
the  code  that  relates  exclusively  to  actions  for  the  recovery  of  real 
estate.  It  provides  :  "  Where  there  are  two  or  more  plaintiffs  or  de- 
fendants, any  one  or  more  of  the  plaintiffs  may  recover  against  one  or 
more  of  the  defendants  the  premises,  or  any  part  thereof,  or  interest 
therein,  or  damages,  according  to  the  rights  of  the  parties ;  but  the 
recovery  shall  not  be  for  a  greater  interest  than  that  claimed.  "m 

It  is  held  under  this  section  that  a  joint  judgment  may  be  rendered 
against  all  of  the  defendants  for  possession  of  the  land,  and  a  separate 
judgment  against  one  of  them  for  damages.11 

The  section  does  not  affect  the  rules  of  pleading.  The  complaint, 
to  be  good,  must  state  a  cause  of  action  in  favor  of  all  the  plaintiffs  as 
in  other  cases.  It  is  only  where  the  complaint  states  a  cause  of  action 
in  all,  but  the  proof  sustains  it  as  to  a  part  only,  that  the  section  is  ap- 
plicable.0 

(j)  Draper  v.  Vanhorn,  12  Ind.  352.  Small,  58  Ind.  349;  Steeple  v.  Dowri- 

(k)  Stafford   v.   Nutt,  51    Ind.  535,  ing,  60  Ind.  478. 

538.  (n)  Clements  v.  Robinson,  54   Ind. 

(1)  Fitzgerald    v.    Center,   26    Ind.  599. 

238.  (o)  Parker  v.  Small,  58  Ind.  349. 

(m)  R.   S.  1881,  §  1060;    Parker  v. 


G40  JUDGMENT.  [CHAP. 

In  the  supreme  court  if  the  judgment  below  is  for  all  of  the  plain- 
tiffs when  it  should  have  been  for  a  part  only,  it  will  be  reversed  as 
to  those  in  whom  no  cause  of  action  is  shown  and  affirmed  as  to  the 

others." 

• 

991.  Where  there  is  a  set-off. — "If  a  set-off  established   at 
the  trial  exceed  the  plaintiff's  claim  so  established,  judgment  shall  be 
rendered  for  the  excess ;  or  if  it  appear  that  the  defendant  is  entitled 
to  any  other  affirmative  relief,  judgment  shall  be  given  therefor."  ° 

Where  a  set-off  is  pleaded  and  established,  whether  it  is  sufficient  to 
overcome  the  plaintiff's  whole  claim  or  not,  the  judgment  is  double  in 
its  nature,  being  in  favor  of  the  plaintiff  on  his  cause  of  action  and  in 
favor  of  the  defendant  on  his  set-off.  But  instead  of  rendering  two 
separate  judgments  the  recovery  must  be  for  the  difference  between 
the  two  claims,  whether  in  favor  of  the  plaintiff  or  defendant,  not  ex- 
ceeding the  amount  claimed  by  the  defendant  if  in  his  favor.p 

992.  Judgment  on  default. — The  manner  of  taking  default,  and 
the  practice  relating  thereto,  has  been  partially  considered  in  a  former 
chapter.*1 

The  amount  of  the  judgment,  where  there  is  a  default,  can  not  ex- 
ceed the  amount  demanded  in  the  complaint/ 

A  default  simply  admits  a  cause  of  action  in  the  plaintiff,  not  the 
amount.  Without  proof  of  the  amount  due  the  judgment  must  be 
for  nominal  damages  only  where  the  action  is  for  the  recovery  of  money, 
and  the  defendant  may,  after  a  default  taken  against  him,  contest  the 
amount  of  damages.9 

The  effect  of  a  judgment  by  default,  as  an  admission  of  the  defend- 
ant, or  as  an  estoppel  or  former  adjudication,  can  not  be  extended  be- 
yond the  allegations  contained  in  the  complaint.  Thus,  where  an  ac- 
tion was  brought. to  foreclose  a  mortgage  making  the  widow  of  the  de- 
ceased grantor  a  party,  alleging  simply  that  she  was  an  heir,  she  suf- 
fered a  default,  and  judgment  of  foreclosure  was  rendered. 

In  a  subsequent  action  by  her  to  partition  the  laud,  it  was  held  that 
she  was  not  estopped  by  the  judgment  to  claim  the  one-third  inherited 

(n)  Steeple  v.  Downing,  60  Ind.  478,  (q)   Ante,  vol.  I.,  §  448  et  seq. 

503.  (r)  K.  S.   1881,  §385;  ante,  vol.  I., 

(o)  E.  S.  1881,  ?  571.  §  425,  and  cases  cited ;  Busk.  Prac.  279 ; 

(p)  Hurd  v.  Earl,  4  Blkf.  184;  Gaff  May  v.  The  State  Bank,  9  Ind.  233. 

r.  Hutchinson,  38  Ind.  341,  346;  Little  (s)  R.    S.    1881,    §   573;    Briggs   v. 

v.  The  Danville,  etc.,  Plank  Eoad  Co.,  Sneghan,  45  Ind.  14;  ante,  \\  455,  458. 
18  Ind.  86;  Shriver  v.  Bo  wen,  57  Ind. 
266. 


XXII.]  JUDGMENT.  G41 

by  her  as  the  widow  of  the  mortgagor,  as  there  was  no  allegation  in  the 
complaint  in  foreclosure  tending  to  negative  her  right  to  claim  any  part 
of  the  land  as  the  widow.* 

There  can  not  be  a  judgment  by  default  while  there  is  an  issue  of 
fact  pending.0 

The  issue  must  be  tried,  but  if  the  defendant  fails  to  appear  at  'the 
trial  he  thereby  waives  a  jury  trial,  and  the  cause  may  be  submitted 
to  the  court. T 

993.  On  constructive  notice. — There  can  be  no  personal  judg- 
ment rendered  a'gainst  a  defendant  on  constructive  service  by  publica- 
tion, without  an  appearance  to  the  action  either  in  person  or  by 
attorney. w 

Such  a  judgment  is  not  only  erroneous,  but  it  is  absolutely  void,  and 
a  sale  of  real  estate  under  it  conveys  no  title.1 

Personal  service  out  of  the  state  has  the  same  force  as  notice  by 
publication,  and  the  same  rule  applies. y 

Service  by  copy  in  this  state  is  actual  and  not  constructive  notice, 
and  personal  judgment  may  be  rendered  thereon.2 

Where  the  action  is  local  there  may  be  a  judgment  in  rem,  on  con- 
structive notice;  but  no  personal  judgment  can  be  taken  in  connection 
therewith."  But  the  court  may  award  an  execution  on  constructive 
service  when  a  personal  judgment  has  been  properly  rendered  in  the 
original  action.1* 

Where  a  default  is  taken  in  an  action  in  rem  on  constructive  notice, 
the  default  does  not  admit  the  allegations  of  the  complaint,  therefore 
there  can  be  no  judgment  without  proof  of  the  facts  alleged.0 

The  court  may  also  cause  the  plaintiff  to  be  examined  in  open  court 
under  oath,  not  only  as  to  his  cause  of  action,  but  as  to  any  matter  of 
set-off  or  counterclaim,  and  his  answers  may  be  reduced  to  writing  and 
filed  with  the  papers  in  the  cause. d 

(t)  Unfried  v.  Heberer,  63  Ind.  67.  11  Ind.  383;  Beard  v.  Beard,  21  Ind. 

(u)  Ten-ill  ».  The  State,  68  Ind.  155.  321;   Gibson   v.   Green,  22   Ind.   422; 

(v)  Ante,   vol.   I.,  §  829;    Love   v.  Lytle  v.  Lytle,  48  Ind.  200. 

Hall,  76  Ind.  326.  (z)  Sturgis    v.   Fay,    ,6    Ind.    429; 

(w)  R.  S.  1881,  §  390;  Allen  v.  Cox.  Ewing  v.  Ewing,  24  Ind.  468. 

11  Ind.  383;  Mitchell  v.  Gray,  18  Ind.  (a)  Mitchell  v.  Gray,  18  Ind.  123. 

123;  CavenHUgu  v.  Smith,  84  Ind.  380.  (b)  Gibson  v.  Green,  22  Ind.  422. 

(x)  Sowders   v.    Edmunds,    76  Ind.  (c)  R.  S.  1881,  §387;    ante,  vol.  L, 

123.  §  457. 

(y)  R.  S.  1881,  §  319;   Allen  v.  Cox,  (d)  R.  S.  1881,  §  388. 
41 


642  JUDGMENT.  [CHAP. 

In  divorce  cases,  there  can  be  no  judgment  without  proof  of  the  al- 
legations of  the  complaint.6 

994.  Judgment  in  rem  may  be  opened  in  five  years. — 
"Parties  against  whom  a  judgment  has  been  rendered  without  other 
notice  than  the  publication  in  the  newspaper  herein  required,  except  in 
c.tses  of  divorce,  may,  at  any  time  within  five  years  after  the  rendition 
of  the  judgment,  have  the  same  opened  and  be  allowed  to  defend. "f 

"  Before  any  judgment  shall  be  opened,  such  party  shall  give  notice 
to  the  original  complainant,  or  his  heirs,  devisees,  executors,  or  ad- 
ministrators, of  his  intention  to  make  application  to  have  the  judgment 
opened,  as  the  court  in  term  or  the  judge  thereof  in  vacation  shall  re- 
quire ;  and  shall  file  a  full  answer  to  the  original  complaint,  and  an  af- 
fidavit stating  that,  during  the  pendency  of  the  action,  he  received  no 
actual  notice  thereof  in  time  to  appear  in  court  and  object  to  the  judg- 
ment ;  and  shall  also  pay  all  such  costs  of  the  action  as  the  court  shall 
direct."  « 

These  two  sections  of  the  statute  are  not  limited  expressly  to  judg- 
ments in  rem,  but  they  must  be  so  limited,  as  there  can  be  no  personal 
judgment  without  actual  notice.11 

They  can  not  be  applied  to  cases  where  there  has  been  personal  serv- 
ice out  of  the  state,  nor  to.  cases  where,  although  the  notice  was  by 
publication,  the  defendant  knew  of  the  pendency  of  the  action  in  time 
to  object  to  the  notice. 

The  statute  expressly  requires  that  he  shall  make  affidavit  that  he 
had  not  actual  notice  in  time  to  object  to  the  notice. 

The  proper  practice  in  this  class  of  cases  is  not  settled  by  authority. 
The  notice  of  the  application  must  be  for  such  time  as  the  court  or 
judge  may  determine.  The  matter  should  be  presented  to  the  court 
or  judge  in  the  first  instance  by  a  petition  stating  the  facts,  accompa- 
nied by  a  full  answer,  and  the. necessary  affidavit.  The  court  or  judge 
should  thereupon  make  an  order  fixing  the  length  of  time  notice  shall 
be  given.  The  notice  should  be  given  in  accordance  with  the  direction 
of  the  court  or  judge  ;  should  set  out  the  facts  stated  in  the  petition, 
and  the  time  when  and  the  place  where  the  application  to  open  the 
judgment  will  be  made. 

There  may  be  some  question  whether  the  statute  makes  it  necessary 
that  the  answer  and  affidavit  shall  be  filed  and  presented  with  the  pe- 
tition when  an  order  fixing  the  time  of  giving  notice  is  asked  for,  or 

(e)  Scott  v.  Scott,  17  Ind.  309;  ante,         (g)  R.  S.  1881,  §  601. 
vol.  I.?  §  456.  (h)  Ante,  §  993. 

(f)  R.  S.  1881,  §600. 


XXII.]  JUDGMENT.  643 

whether  they  may  be  filed  afterward.  The  terms  of  the  statute  in  this 
respect  are  not  definite.  But  the  safer  and  better  practice  is  to  file  and 
present  all  of  the  necessary  papers  before  giving  the  notice. 

Where  there  has  been  a  sale  of  real  estate  under  the  judgment,  and 
the  same  has  passed  into  the  hands  of  a  purchaser  in  good  faith,  his 

title  will  not  be  affected  by  the  proceeding  to  open  the  judgment.' 

«• 

995.  Judgment  without  notice. — In  order  to  the  validity  of  a 
judgment,  the  court  must  have  jurisdiction.  If  a  personal  judgment 
is  rendered,  the  court  must  have  jurisdiction  of  the  person.  If  in  rem, 
there  must  be  jurisdiction  of  the  subject-matter.  In  either  case,  there 
must  be  notice.  In  the  one  case  by  personal  service,  and  in  the  other 
by  personal  service  or  constructive  notice.  Without  such  notice,  a 
judgment  by  default,  where  there  has  been  no  appearance  is  absolutely 
void.-* 

The  rule  applies  to  sales  of  real  estate  by  executors  or  administrators 
without  notice  to  the  heirs.k 

But  it  is  held  that,  where  there  has  been  service,  but  for  a  shorter 
time  than  is  required  by  law,  the  judgment  is  not  void  but  erroneous 
or  voidable.1 

A  distinction  is  made  between  defective  or  irregular  service  and  no 
service.  The  one  gives  the  court  jurisdiction,  the  other  does  not. 
Where  the  defendant  has  been  served  with  process  he  has  an  opportu- 
nity to  contest  its  sufficiency,  and  the  court  has  jurisdiction  to  determine 
the  question.  If  the  court  errs  in  holding  the  notice  sufficient  an  ap- 
peal will  lie,  or  if  judgment  is  taken  by  default  it  may  be  set  aside  in 
the  court  rendering  it,  but  it  can  not  be  attacked  collaterally.  It  is 
otherwise  where  there  is  no  notice.  The  judgment  is  a  nullity,  and 
may  be  attacked  whenever  and  however  the  question  of  its  validity 
may  arise.  Where  the  process  is  so  defective  as  not  to  inform  the  de- 
fendant of  the  time  or  place  when  and  where  he  is  required  to  appear, 
this  is  equivalent  to  no  notice,  and  will  not  uphold  the  judgment."1 

Where  there  is  a  cross-complaint  filed  by  one  defendant  against  an- 

(i)  R.  S.  1881,  §  602.  len,  62  Ind.  401 ;  The  State  v.  Ennis, 

(j)  Anderson  v.  Miller,  4  Blkf.  417;  74  Ind.  17;  Johnson  v.  Ramsay,  91 
Bliss  v.  Wilson,  4  Blkf.  169;  Smith  v.  Ind.  189;  Brown  r.  Goble,  97  Ind.  86. 
Myers,  5  Blkf.  223;  Cochnower  v.  (k)  Hawkins  r.  Hawkin?,  28  Ind.  66. 
Cochnower,  27  Ind.  253;  Lee  v.  Back,  (1)  Helphoiistine  v.  The  Vincennes 
30  Ind.  148;  Shoemaker,  Auditor  of  National  Bank,  05  Ind.  582;  Freeman 
State  v.  The  Board,  e*c.,  of  Grant  on  Judgment?,  \  120;  Grimwood  v. 
County,  36  Ind.  175;  Packard  v.  Men-  Macke,  79  Ind.  100;  Stout  v.  Woods,  79 
denhall,  42  Ind.  698;  Middleworth  v.  Ind.  108;  Muncie  v.  .lacst,  74  Ind.  409. 
McDowell,  49  Ind.  386;  Brooks  v.  Al-  (m)  Fro -man  on  Judgments,  §  126, 

citing  Kitsmiller  r.  Kitchen,  24  Iowa, 
163;  Me  Alpine  v.  Sweetzer,  76  Ind.  78; 
McMullen  v.  The  State,  105  Ind.  334. 


G44  JUDGMENT.  [CHAP. 

other  who  is  not  before  the  court  by  actual  appearance,  either  to  the 
original  complaint  or  the  cross-complaint,  and  has  no  actual  knowledge 
of  the  filing  of  the  same,  there  can  be  no  judgment  on  the  latter 
without  the  proper  notice." 

Where  the  matter  set  up  in  the  cross-complaint  is  alleged  in  the 
original  complaint  as  a  part  of  the  plaintiff's  cause  of  action,  no  notice 
of  the  filing  of  the  former  seems  to  be  necessary,  nor  is  it  when  the 
defendant  against  whom  the  cross-complaint  is  filed  is  in  court  in  per- 
son or  by  attorney,  and  has  actual  notice  of  the  filing  thereof.0 

On  appeal  from  a  judgment  by  default  the  record  must  show,  by  the 
summons  and  return  being  set  out  therein,  that  the  defendant  has 
either  appeared  to  the  action  or  has  been  duly  served  with  process,  or 
the  cause  will  be  reversed.  An  express  recital  in  the  record  that 
there  was  service  of  process  is  not  sufficient.1*  • 

The  summons  and  return  need  not  be  set  out  in  the  record  of  a  jus- 
tice of  the  peace  on  appeal. 

Where  a  defendant  refuses  to  discharge  a  rule  to  answer,  judgment 
may  be  rendered  against  him  as  upon  a  default q 

A  defendant  may  withdraw  his  appearance  by  leave  of  the  court. 
By  withdrawing  his  appearance  he  withdraws  any  pleadings  he  may 
have  filed,  and  judgment  may  be  taken  by  default.  In  such  case  the 
record  must  show  the  proper  notice  as  in  other  cases/ 

996.  Judgment  without  defaulting  the  defendant. — Before 
rendering  judgment  the  defendant  should  be  three  times  called  and  a 
default  entered  against  him  on  the  record.  But  the  failure  to  call  the 
party,  or  enter  a  default  against  him,  does  not  render  the  judgment 
void.  It  is  an  error  that  must  be  reached  by  a  motion  for  a  new  trial, 
and  can  not  be  presented  for  the  first  time  in  the  supreme  court.8 

It^  is  held  that  the  failure  to  enter  the  default,  where  it  has  been 
taken,  is  such  an  irregularity  as  the  court  below  might  amend,  and  it 
will  be  deemed  amended  in  the  supreme  court.' 

It  is  said,  in  some  of  the  cases,  that  the  irregularity  in  not  calling 
the  defendant  may  be  amended,  as  well  as  the  failure  to  enter  the 

(n)  Swift  r.  Brumfield,  76  Ind.  472;         (q)  Kisher  v.  Morgan,  56  Ind.  172. 
Fletcher  v.  Holmes,  25  Ind.  458;  Joyce         (r)  Smith  v.  Foster,  59  Ind.  -L.95. 
u.  "Whitney,  57  Ind.  550;  ante,  vol.  I.,         (s)  Smith  v.  Foster,  59  Ind.  595. 

§208.  .   (t)  Key  v.    Robinson,   8   Ind.   368-, 

(o)  Joyce  r.  Whitney,  67  Ind.  550;  Shaw  v.  Binkard,  10  Ind.  227;  Sloan 

Pattison  v.  Vaughan,  40  Ind.  253.  17.  Wittbank,    12   Ind.  444;    Smith  17. 

(p)  Fee  17.  The   State,  74  Ind.  66;  Foster,  59  Ind.  595. 
Eltzroth  17.  Voris,  74  Ind.  459. 


XXII.]  JUDGMENT.  G45 

default.  This  it  is  believed  \va^  not  intended.  The  record  would  un- 
doubtedly be  amendable  tj  show  the  fact  that  defendant  had  been 
called.  But  the  act  of  calling  him  certainly  could  not  be  the  subject 
of  amendment. 

The  failure  to  default  the  defendant  is  not  sufficient  to  review  or  re- 
verse the  judgment." 

But  it  is  otherwise  where  a  default  is  taken  on  the  first  day 
of  the  term.v 

An  act  was  passed  March  21,  1879,  by  which  it  was  attempted  to 
legalize  proceeedings  by  which  defaults  had  been  taken  and  judgments 
rendered  thereon  on  the  first  day  of  the  term  of  any  circuit  court 
prior  to  its  enactment. w  But  the  act  is  unconstitutional.1 

2.    IN   AN   ACTION    COMMENCED    BY   AGREEMENT. 

997.  Agreed  case. — An  action  maybe  instituted  by  agreement 
of  the  parties,  process  being  waived  thereby,  and  the  case  allowed  to 
proceed  •  as  in  other  cases,  or  the  controversy  may  be  submitted  by 
agreement  under  the  statute  authorizing  an  agreed  case,  or  judgment 
may  be  rendered  by  agreement. 

In  the  first  of  these  cases,  where  the  action  is  simply  put  in  motion 
by  agreement,  the  action  must  necessarily  proceed  to  judgment  as  in 
other  litigated  cases.  The  practice  in  agreed  cases  has  been  consid- 
ered.y 

The  agreed  statement  of  facts  takes  the  place  of  the  pleadings,  and 
judgment  must  be  rendered  in  favor  of  the  party  entitled  thereto,  tak- 
ing the  facts  to  be  true.  If  the  facts  fail  to  show  a  cause  of  action  in 
either  party,  there  can  be  no  judgment.2 

The  affidavit  required  by  the  statute  takes  the  place  of  process,  and 
gives  the  court  jurisdiction  of  the  persons  of  the  parties.8 

The  court  must  be  one  that  would  have  jurisdiction  if  the  suit  were 
brought  as  an  adversary  proceeding,  or  no  valid  judgment  can  be  ren- 
dered.15 

998.  Judgment  by  agreement. — The  parties  may  agree  upon  the 
judgment  to  be  rendered,  in  which  case  the  agreement  is  the  basis  of 
the  judgment,  and  it  must  conform  thereto,  although  under  the  plead- 

(u)  Doherty  v.  Chase,  64  Ind.  73.  (y)   Ante,  vol.  I.,  §§  811,  812,813;  R. 

(v)  Mitchell   v.  McCorkle,  69  Ind.  S.  1881,  §  553. 

184.  (z)  Gregory  v.  Purdue,  29  Ind.  66. 

(w)  Acts  1879,  p.  116.  (a)  Ante,  vol.  I.,  §  812. 

(x)  Mitchell   v.  McCorkle,  69  Ind.  (b)  R.  S.  1881,  §  553. 
184 


646  JUDGMENT.  [CHAP. 

ings  no  such  judgment  could  be  rendered  without  the  consent  of  par- 
ties.c 

The  judgment  has  the  same  force  as  other  final  judgments  of  the 
court,  and,  in  the  absence  of  fraud,  is  binding  upon  junior  incum- 
brancers  or  others  interested  in  the  property  affected  by  the  judgment.*1 

An  agreement  on  the  part  of  the  defendant  that  judgment  may  be 
rendered  against  him  without  pleading  is  a  waiver  of  his  right  to  plead, 
is  an  admission  of  the  truth  of  the  averments  of  the  complaint,  and 
waives  defects  therein.6 

3.    BY   CONFESSION,   WITHOUT  AN   ACTION. 

999.  Offer  to  allow  judgment/1)  The  defendant  may,  after  suit 
brought,  offer  to  allow  judgment.  The  statute  provides: 

"  The  defendant  may,  at  any  time  before  trial,  serve  upon  the  plaint- 
iff an  offer  to  allow  judgment  to  be  taken  against  him  for  the  sum  or 
property,  or  to  the  effect  therein  specified,  with  costs.  If  the  plaintiff 
accept  the  offer  in  court,  in  the  presence  of  the  defendant,  or  give  no- 
tice of  acceptance  in  writing  within  five  days  and  before  the  trial,  judg- 
ment shall  be  entered  accordingly.  Tf  the  offer  is  not  accepted,  or  no- 
tice of  acceptance  be  not  given  as  above  directed,  the  offer  is  to  be 
deemed  withdrawn,  and  shall  not  be  given  in  evidence  or  commented 
on  before  the  jury,  and  if  the  plaintiff  fail  to  obtain  a  more  favorable 
judgment,  the  defendant  shall  recover  from  the  plaintiff  the  costs  oc- 
casioned subsequent  to  the  time  of  the  offer.  "f 

Under  this  section,  the  offer  to  allow  judgment  can  not  be  made 
until  an  action  is  pending.8 

No  previous  notice  is  provided  for.  It  is  only  necessary  to  serve  the 
plaintiff  with  the  offer.  Both  parties  being  in  court,  no  notice  of  the 
time  and  place  of  making  the  offer  is  necessary.  (2) 

The  offer  must  fix  the  amount  for  which  judgment  will  be  confessed, 
and  must  embrace  all  costs  up  to  the  time  of  and  including  the  enter- 
ing of  the  judgment,  if  it  is  accepted.11 

The  offer  need  not  in  express  terms  include  the  cost  of  rendering 
judgment.  Thus  it  is  held  that  an  offer  to  confess  judgment  for  a 
given  sum  and  "  accrued  costs"  is  sufficient.' 

(c)  Fletcher  v.  Holmes,  25  Ind.  458.         (g)  Homer   v.   Pilkington,   11    Ind. 

(d)  Fletcher  v.  Holmes,  25  Ind.  458  ;     440. 

Applegate  v.  Edwards,  45  Ind.  829.  (h)  Barter  v.  Comstock,  11  Ind.  525; 

(e)  Robinson  v.  Starley,  29  Ind.  298 ;     Holland  v.  Pugh,  16  Ind.  21 ;  Harris*. 
Hudson  v.  Allison,  54  Ind.  215;   Lyon     Dailey,  16  Ind.  183. 

v.  Roy,  54  Ind.  300.  (i)  Holland  v.  Pugh,  16  Ind.  21. 

(f )  R.  S.  1881,  ?  514.  (2)  Keller  v.  Allee,  87  Ind.  252. 
(1)  Form  of  offer,  Vol.  3,  p.  441. 


XXII.]  JUDGMENT.  647 

So  of  an  offer  for  a  certain  sum,  "  with  costs  accrued  to  the  present 
time."j 

And  for  an  amount  "and  costs." k 

But  these  must  be  held  sufficient  on  the  ground  that  an  acceptance 
Avould  bind  the  defendant  to  pay  all  costs,  if  judgment  should  be  ren- 
dered on  the  offer. 

The  offer  may  be  served  on  the  plaintiff's  attorney  of  record.1 

The  plaintiff  may  accept  the  offer  in  open  court  or  by  serving  a  writ- 
ten notice  of  acceptance  within  five  days.  If  the  offer  is  accepted,  the 
judgment  follows  as  of  course,  and  must  conform  in  all  respects  to  the 
offer,  as  it  forms  the  basis  of  the  judgment.  If  the  offer  is  not  ac- 
cepted within  the  five  days,  the  action  proceeds  as  if  it  had  not  been 
made,  and  if  the  plaintiff  fails  to  recover  an  amount  greater  than  that 
named  therein,  he  must  pay  all  costs  that  have  accrued  since  the  offer 
was  made. 

An  offer  to  allow  judgment  before  a  justice  continues  in  force  on 
appeal. 

1000.  Offer  to  confess  judgment/1) The  statute  authorizes   a 
party  who  is  liable  to  an  action  to  go  into  the  court  where  he  resides, 
or  of  the  residency  of  the  party  having  the  cause  of  action,  and  offer 
to  confess  judgment  before  suit  is  brought.     Notice  must  be  given  the 
creditor  of  the  time  and  place  of  making  the  offer  ten  days  before  the 
first  day  of  the  term  of  court." 

If  the  offer  is  made  at  the  time  and  place  named  in  the  notice,  the 
creditor  must  accept  during  the  term  of  court  or  pay  all  costs  of  an 
action  thereon,  if  he  recovers  no  more,  and  the  defendant  is  not  bound 
by  his  offer  as  an  admission  of  the  amount  due.0 

The  right  given  by  this  section  of  the  statute  is  one  rarely  resorted 
to  in  practice. 

1001.  Confession  of  judgment;    in  person. — "Any  person 
indebted,  or  against  whom  a  cause  of  action  exists,  may  personally  ap- 
pear in  a  court  of  competent  jurisdiction,  and,  with  the  consent  of  the 
creditor,  or  person  having  such  cause  of    action,  confess  judgment 
therefor,  whereupon  judgment  shall  be  entered  accordingly."  p 

"  The  debt,  or  cause  of  action,  shall  be  briefly  stated  in  a  writing,  to 

(j)  Rose  v.  Grinstead,  53  Ind.  202;         (n)  Homer   v.  Pilkington,   11   Ind. 

Keller  v.  Alice,  87  Ind.  252.  440. 

(k)  Harris  v.  Daik-y,  1(5  Ind.  183.  (o)  R.  S.  1881,  2  515. 

(1)  Holland  v.  Puj/h,  16  Ind.  21.  (p)   K. .S.  1881,  \  586. 

(m)  Lewis  v.  Morrison,  10  Ind.  394.         (1)  Form  of  offer,  Vol.  3,  p.  442. 


648  JUDGMENT.  [CHAP. 

be  filed  and  copied  into  the  judgment.  The  confession  shall  operate 
as  a  release  of  errors."  q 

Under  these  sections  of  the  statute  there  must  be  a  consent  to  the 
confession  of  judgment  by  the  party  having  the  cause  of  action. 
Without  his  consent  the  judgment  is  of  no  force  unless  ratified  by 
him.r 

By  virtue  of  section  587  the  confession  of  judgment  waives  errors. 
Thit  where  the  court  has  no  jurisdiction  of  the  subject-matter,  the 
judgment  is  void,  and  the  want  of  jurisdiction  can  not  be  cured  by 
the  consent  of  the  parties.8  So  where  the  judgment  is  void  for  other 
causes.* 

It  is  only  where  the  judgment  would  be  voidable,  or  erroneous,  for 
some  cause,  that  the  statute  will  cure  the  defect." 

It  is 'required  that  a  statement  of  the  cause  of  action  shall  be  filed 
in  writing.7 

The  statement  should  describe  the  cause  of  action  as  would  be  re- 
quired in  a  complaint,  and  may  properly  be  in  the  same  form.w 

It  is  held  that  this  section  does  not  apply  where  a  complaint  is  filed.1 

TJie  affidavit. — The  statute  requires  that  "  whenever  a  confession 
of  judgment  is  made  by  power  of  attorney,  or  otherwise,  the  party  con- 
fessing shall,  at  the  time  he  executes  such  power  of,  attorney,  or  con- 
fesses such  judgment,  make  affidavit  that  the  debt  is  just  and  owing, 
and  that  such  confession  is  not  made  for  the  purpose  of  defrauding  his 
creditors.  The  affidavit  shall  be  filed  with  the  court."  y 

The  provisions  of  this  section  are  for  the  prevention  of  fraud.  The 
affidavit  is  not  necessary  to  the  validity  of  the  judgment  as  between 
the  parties  thereto/- 

Where  there  is  no  affidavit,  or  one  not  in  substantial  compliance 
with  the  statute,  the  judgment  is  absolutely  void  as  against  creditors/ 

And  although  the  necessary  affidavit  is  filed,  the  judgment  may  be 
impeached  for  fraud  by  creditors.1* 

(q)  K.  S.  1881,  §  587.  (w)  Freeman  on  Judg.,  §  549;  Igle- 

(r)  Haggarty  v.  Juday,  58  Ind.  154  ;  hart's  Prac.,  p.  274. 

Barnett  v.  Juday,  38  Ind.  86;  Kennard  (x)  Stebbens   v.   Cubberly,   10   Ind. 

v.   Carter,   64   Ind.   31;    Freeman    on  301. 

Judg.,  §  548.  (y)  R.  S.  1881,  g  588. 

(s)  Marsh  v.  Sherman,  12  Ind.  358;  (z)  Kennard  v.  Carter,  64  Ind.  31; 

Freeman  on  Judg.,  §  547.  Mavity   v.    Eastbrid-c,   67    Ind,   211; 

(t)  Dawson   v.   Wells,  3   Ind.   398 ;  Hopper  v.  LUI-MS,  80  1  nd.  43. 

Eastwood  v.  Buel,  1  Ind.  434.  (a)  Ex   jimus   Knight,  4  Blkf.  220; 

(u)  Thatcher  v.  Coleman,  5  Blkf.  76.  Feaster    r.     \\udfill,    L'3    Ind.    493; 

.  (v)  R.  S.  1881,  §  587.  Mavity  r.  l.u=ibi-itl-e,  67  Ind.  211. 

(b)    Bruner  0.  Manville,  2   Blkf.  485. 


XXII.]  JUDGMENT.  649 

Where  the  cause  of  action  is  set  forth  in  the  complaint,  it  need  not 
be  described  in  the  affidavit/ 

1002.  Confession  by  attorney. — Judgment  may  be  confessed 
by  a  third  party,  having  the  proper  power  of  attorney.     The  same  af- 
fidavit is  required  as  in  a  confession  in  person. d 

The  failure  to  make  and  file  the  necessary  affidavit  is  cause  for  re- 
versal.0 

The  warrant  or  power  of  attorney  must  be  executed  according  to  the 
requirements  of  the  statute  in  force,  and  must  sufficiently  describe  and 
identify  the  cause  of  action. f 

But  it  has  been  held  that  where  the  warrant  authorized  the  eonfes- 
sion  of  judgment  at  a  certain  term,  in  favor  of  a  certain  person,  for  a 
certain  sum,  in  an  action  of  debt,  a  jiftlgment  rendered  thereon  was 
not  erroneous  because  the  particular  debt  was  not  described. g 

Where  the  cause  of  action  is  properly  set  forth  in  -the  complaint,  it 
is  sufficient  if  the  warrant  identifies  it  as  the  same.h 

Where  there  is  no  appearance  by  the  defendant,  and  there  has  been 
no  personal  service,  no  judgment  can  be  rendered  on  the  agreement  of 
an  attorney,  except  upon  written  authority  given  him  to  consent  to  such 
judgment.' 

Where  the  warrant  of  attorney  is  to  A.,  "  or  any  other  attorney. of 
the  court  in  which  the  judgment  is  to  be  confessed,"  the  confession  may 
be  in  the  name  of  any  attorney  of  the  court. J 

A  power  of  attorney  to  confess  judgment  can  not  be  revoked  by  the 
party  giving  it.k 

1003.  The  judgment. — Where  the  judgment  is  rendered  on  the 
personal  confession  of  the  defendant,  it  must  be  rendered  in  accordance 
with  the  confession  as  consented  to  by  the  party  having  the  cause  of 
action. 

Where  the  confession  is  by  a  warrant  of  attorney,  the  judgment 
must  conform  strictly  to  the  authority  therein  given.1 

The  warrant  of  attorney  should  be  set  out  in  the  record,  immediately 

(c)  Clouser  v.  March,  15  Ind.  82.  (h)  Gambia  v.  Howe,  8  Blkf.  133. 

(d)  R.  S.  1881,  §  588;  McPheters  v.        (i)  Jarrett  v.  Andrews,  19  Ind.  403. 
Campbell,  5  Ind.  107.  (j)  Patton  v.  Stewart,  19  Ind.  233. 

(e)  Aldrich  v.  Minard,  12  Ind.  551.  (k)  Kindig  r.  March,  15  Ind..  248; 

(f )  McPheters  v.  Campbell,  5  Ind.  Eldridge  v.  Falwell,  3  Blkf.  207. 

107;    Veach    v.    Pierce,    G    Ind.    48;         (1)  Harris   r.   Stanton,  4    Ind.  120; 
Gambia  v.  Howe,  8  Blkf.  133.  Miller  r.  Macklot,  13  Ind.  217;  Mason 

(g)  Eldridge  v.  Falwell,  3  Blkf.  207.     v.  Smith,  8  Ind.  73. 


C50  JUDGMENT.  [CHAP. 

preceding  the  judgment,  and  the  two  are  equivalent  to  a  finding  and 
judgment.™ 

The  section  of  the  statute  providing  that  a  confession  of  judgment 
waives  errors  applies  to  personal  confessions,  and  not  to  those  founded 
on  warrants  of  attorney." 

But  where  the  warrant  of  attorney  contains  a  release  of  errors,  the 
judgment  defendant  is  bound  thereby.0 

A  judgment  of  foreclosure  may  be  confessed  under  a  warrant  of  at- 
torney.15 

There  can  be  no  valid  judgment  rendered  upon  a  written  agreement 
fixing  the  amount  and  consenting  that  judgment  may  be  rendered 
therefor,  where  there  is  no  appearance  in  person  or  by  attorney,  or 
service  of  process  on  the  parties  who  execute  such  consent.  The  court 
has  not  jurisdiction  of  the  persons,  and  can  render  no  valid  judgment.*1 

FORM   OF  JUDGMENT. 

1004.  Generally. — No  precise  \vords  are  necessary  to  constitute  a 
judgment.  It  must  be  tested  rather  by  its  substance  than  its  form/ 

But  there  are  certain  words  that  have  almost  invariably  been  used 
that  should  not  be  omitted.  Thus  the  words  "  it  is  considered  by  the 
court  that  the  plaintiff  recover  "  are  held  to  be  peculiarly  appropriate 
to  show  that  what  is  to  follow  is  the  act  of  the  law  and  not  of  the 
judges.9 

And  in  Indiana  these  or  equivalent  words  must  be  used  to  constitute 
a  valid  judgment.' 

It  is  held  in  the  case  of  Needham  v.  Gillaspy,  that  the  word  "'re- 
cover" is  necessary  to  constitute  a  valid  judgment  for  the  recovery  of 
money,  and  the  amount  of  the  recovery  must  be  stated,  and  that  in 
other  cases  the  words  used  must  be  appropriate  to  the  relief  granted. 

There  are  numerous  cases  in  other  states  holding  that  neither  the  word 
"  recover"  nor  "  considered"  is  necessary  to  the  validity  of  a  judgment." 

And  our  statute  expressly  provides  that  the  word  "judgment"  means 
all  final  orders,  decrees,  and  determinations  in  an  action  ;  also  all  or- 
ders upon  which  executions  may  issue.7 

(m)  Miller  v.  Macklot,  13  Ind.  217.  Stanton,  4  Ind.  120;  Conley  v.  Tracy, 

(q)  McPheters  v.  Campbell,  5  Ir.d.  4  Ind.  137;  a-;te,  vol.  I.,  §§224,  225. 

107 ;  Miller  v.  Macklot,  13  Ind.  217.  (r)  Freeman  on  Judg.,  §  47. 

(o)  Miller  v.  Macklot,  13  Ind.  217;  (s)  Freeman  on  .hids*.,  §46- 

Boyd  v.  Crary,  35  Ind.  363.  (t)  Needham    v.   Gillaspy,   49    Ind. 

(p)  Allen  v.  Parker,  11  Ind.  504.  245;  ante,  \  976. 

(q)  Ferrand  v.  McClease,  1  Ind.  87;  (u)  Freeman  on  Judg.,  §§  50,  51,  52. 

Craig  v.   Glass,  1    Ind.  89;    Harris  v.  (v)   R.  S.  1881,  §  1285. 


XXII.]  JUDGMENT.  G51 

The  judgment,  in  stating  the  amount  of  recovery,  should  include 
the  interest  to  the  date  of  verdict  of  the  jury  or  finding  of  the  court. w 

It  has  been  held  that  a  verdict  for  a  certain  sum,  with  interest  from 
a  fixed  date,  is  sufficient. x 

Where  such  a  verdict  is  rendered,  the  interest  should  be  computed 
to  the  date  of  the  judgment  and  included  in  the  amount  of  the  re- 
covery. 

Where  the  verdict  includes  the  interest,  the  judgment  should  be  for 
the  same  amount. 

Under  the  present  statute,  interest  is  allowed  on  the  amount  found 
by  the  verdict  from  its  date,  and  not  from  the  date  of  the  judgment; 
but  the  interest  accumulating  on  the  verdict  should  not  be  included  in 
the  judgment,  as  this  would  be  to  compel  the  judgment  defendant  to 
pay  interest  on  the  interest  from  the  date  of  the  verdict  to  the  rendi- 
tion of  the  judgment.* 

In  some  of  the  earlier  cases  it  was  held  that  the  interest  in  an  action 
of  debt  must  be  separately  stated,  the  form  of  the  judgment  being  • 
the  sum  of dollars  in  debt,  and  the  sum  of dollars  in  damages.1 

But  this  is  unnecessary  under  the  present  practice. 

Under  a  former  statute,  it  was  required  that  the  judgment  should 
specify  therein  the  rate  of  interest  it  bore.a 

This  is  now  unnecessary,  as  all  judgments  are  made  by  statute  to 
bear  six  per  cent  per  annum. b 

Some  of  the  forms  of  judgments  peculiar  to  particular  cases  will  be 
more  fully  noticed  in  the  following  sections,  and  in  subsequent  chap- 
ters, in  connection  with  the  subjects  therein  considered.  (1) 

1005.  Arbitration  and  award. — The  statute  authorizes  the  sub- 
mission of  matters  of  difference  to  arbitrators.0 

And  the  parties  may  agree  to  make  the  submission  a  rule  of  court. d 
The  statute  provides  that  "  upon  the  return  of  the  rule  the  court 
shall  confirm  the  award  and  render  judgment  thereon,  unless  the 
award  be  vacated,  or  modified,  or  postponed,  as  herein  provided ;  which 
judgment  shall  have  the  same  force  and  effect  as  a  judgment  in  other 
cases." e 

(w)  Stanton  v.  Woodcock,  19   Ind.  (a)  R.  S.  1876,  p.  600,  n.  1 ;  Smith  v. 

273.  Fatman,  71  Ind.  171. 

(x)  Gaff  ».  Hutchinson,  38  Ind.  341 ;  (b)  R.  S.  1881,  \  6199. 

ante,  vol.  I.,  §  837.  (c)  R.  S.  1881,  §  830. 

(y)  R.  S.  1881,  §  5199  ;  ante,  vol.  I.,  (d)  R.  S.  1881,  §  832. 

§981.  (e)  R.  S.  1881.  §843. 

(z)  Stevens  v.  Dunbar,  1  Blkf.  56.  (lj  Forms  of  judgments,  Vol.  3,  pp. 

439-474. 


652  JUDGMENT.  [CHAP. 

The  award  of  the  arbitrators  is  regarded  under  the  statute  as  the 
verdict  of  a  jury.f 

Before  judgment  can  be  rendered,  the  submission  and  award  must 
be  entered  of  record,  a  rule  issued  thereon  to  show  cause  be  duly 
granted  and  served,  and  the  award  confirmed.8 

The  judgment  must  conform  to  the  award  as  in  case  of  a  verdict, 
but  interest  may  be  included  therein  from  the  date  of  the  award. h 

1006.  Attachment. — In  attachment  proceedings  there  may  be  a 
personal  judgment,  and  a  judgment  in  ran.  But  before  a  personal 
judgment  can  be  taken  against  any  defendant,  he  must  be  personally 
served  or  appear  to  the  action.1 

And  there  can  be  no  judgment,  either  against  the  defendant  or  the 
property  attached,  except : 

First.  When  the  defendant  shall  have  been  personally  served  with 
process. 

Second.  When  property  of  the  defendant  shall  have  been  attached 
in  the  county  where  the  action  is  brought. 

Third.  When  a  garnishee  shall  have  been  summoned  in  the  county 
where  the  action  is  brought,  who  shall  be  found  to  be  indebted  to  the 
defendant,  or  to  have  assets  in  his  hands  subject  to  the  attachment. 

The  judgment  of  the  court  against  the  property  should  be  that 
so  much  of  the  property  attached  as  will  satisfy  the  judgment  be 
sold.k 

It  is  held  that  the  plaintiff  can  not  have  judgment  for  more  than 
the  amount  claimed  in  his  affidavit,  and  interest  thereon.1 

The  statute  authorizes  a  judgment  by  default  against  the  garnishee, 
who  fails  to  appear,  when  duly  summoned,  and  answer  or  demur."1 

But  there  can  be  no  final  judgment  against  him  until  the  determi- 
nation of  the  main  action  in  favor  of  the  plaintiff." 

The  judgment  against  the  garnishee. must  be  that  he  pay  over  the 
moneys  in  his  hands  belonging  to  the  attachment  defendant,  as  required 
by  his  contract  with  such  defendant.  Judgment  may  be  taken  against 
him  for  an  amount  not  yet  due,  but  the  order  must  be  for  the  payment 

(f )  Dickerson  r.  Hays,  4  Blkf.  44.  (j)  R.  S.  1881,  §  919.' 

(g)  R.  S.  1881,  H  84-2,  843;  Healy  v.         (k)  Harlow  v.  Becktle,  1  Blkf.  237; 
Isaacs,  73  Ind.  226.  The  Steamboat  Tom  Bowling  v.  Hough, 

(h)  Kintner  v.  The  State,  3  Ind.  86.  5  Blkf.  188. 

(i)  R.   S.    1881,   §   919;    Henrie    v.         (1)  Henrie  v.  Sweasey,  5  Blkf.  273. 
Sweasey,    5     Blkf.    335 ;     Collins     v.         (m)  R.  S.  1881,  §  934. 
Nichols,  7  Ind.  447;    King  v.  Vance,         (n)  R.  S.  18fcl,  §  936. 
46  Ind.  246. 


XXII.]  JUDGMENT.  (553 

of  the  money  when  due.     He  can  not  be  compelled  to  pay  otherwise 
than  as  required  by  the  terms  of  his  contract.0 

But  where  the  indebtedness  is  upon  a  note  governed  by  the  law-mer- 
chant, it  must  be  shown  that  the  note  has  matured  and  was  at  the 
time  it  fell  due  in  the  hands  of  the  attachment  defendant,  or  not  in  the 
hands  of  an  innocent  holder. p 

Where  other  creditors  "  file  under"  in  the  attachment  proceedings, 
the  judgment  against  the  property  should  order  the  sale  thereof,  and 
payment  of  the  proceeds  into  court  to  be  distributed  pro  rota  upon  the 
claims  proved,  after  payment  of  costs.  There  can  be  no  order  of 
distribution  until  the  claims  are  all  disposed  of.  The  several  claims 
are,  so  far  as  the  attachment  proceeding  is  concerned,  but  one  suit,  and 
all  of  the  claims  should  be  disposed  of  by  the  final  order  of  distribution. q 

To  uphold  the  attachment  lien  after  judgment,  there-  must  be  a 
special  judgment  ordering  the  sale  of  the  property  attached  and  a 
special  order  of  sale  thereon.  A  personal  judgment  is  not  sufficient, 
and  when  taken  alone  is  an  abandonment  of  the  lien  under  the  writ  of 
attachment/ 

We  have  a  special  statute  authorizing  the  enforcement  of  a  lien  upon 
boats  and  other  water-crafts.  The  suit  is  instituted,  and  judgment 
may  be  rendered  against  the  boat.  But  the  statute  authorizes  the  de- 
fendant (master,  owner,  or  consignee)  to  give  an  undertaking  which 
has  the  effect  to  release  the  boat,  and  such  defendant  must  be  made  a 
party  to  the  action,  and  personal  judgment  may  be  taken' against  him, 
but  there  can  be  no  order  for  the  sale  of  the  boat.3 

It  is  error  to  render  judgment,  personally,  against  the  surety  upon 
the  undertaking.  It  is  only  against  the  "  master,  owner,  or  consignee" 
that  a  personal  judgment  is  authorized  in  the  original  action.' 

1007.  Bastardy. — The  judgment  in  a  bastardy  proceeding  is  not 
one  for  the  state,  nor  is  it  for  the  relatrix,  the  mother,  but  for  the  main- 
tenance of  the  child.  The  judgment  should,  therefore,  be  for  the 
amount  the  court  may  find  to  be  necessary  for  the  .child's  maintenance, 

(o)  King  v.  Vance,  46  Ind.  24G.  (s)  R.  S.  1881,  §?  5277,  5280,  5283 ; 

(p)  Cleneay  v.  The  Junction  li.  R.  Brayton  v.  Freese,  1  Ind.  121  ;  Jones  v. 

Co.,  26  Ind.  375;  King  v.  Vance,  46  Gresham,  6'  Blkf.  291;  Carson  v.  The 

Ind.   246;    Drake   on  Attachment,  $  Steamboat   Talma,    3   Ind.  1<>4;    The 

587,  588.  La\vrenc«,'burgh  Ferry  Boat  v.  Smith, 

(q)  R.  S.  1881,  §949;  Henderson  v.  1  Ind.  520;    Canal    Boat   Standart    c. 

Uliss,  8  Ind.  100;    Compton  v.  Crone,  Bond,  8  Ind.  270. 

58  Ind.  106.  (t)  Euntz  v.  Bright,  12  Ind.  313. 

(r)  Lowry  v.  McGee,  75  Ind.  508. 


651  JUDGMENT.  [CHAP. 

and  costs.  Damages  for  the  seduction  of  the  mother  or  the  expenses 
of  her  lying  in  can  not  be  recovered." 

The  money  recovered  belongs  to  the  person  who  has  the  legal  cus- 
tody of  and  maintains  the  child. v 

The  judgment  may  require  that  the  sum  shall  be  paid  in  annual  in- 
stallments, the  amount  of  each  installment  and  time  of  payment  to  be 
fixed  therein. w 

Where  the  child  has  been  apprenticed  by  the  mother,  neither  she 
nor  the  party  to  whom  it  is  apprenticed  can  recover  for  its  maintenance. 
But  the  mother  may  have  judgment  for  the  time  she  has  maintained 
the  child  before  it  was  apprenticed.* 

Where  the  child  has  been  taken  from  the  custody  of  the  mother  and 
has  a  guardian,  the  guardian  is  entitled  to  any  money  that  may  be  due 
on  the  judgment  for  the  use  and  benefit  of  the  child. y 

There  can  be  no  valid  judgment  of  dismissal  without  the  admission 
of  the  mother  in  open  court,  entered  of  record,  that  provision  for  the 
maintenance  of  the  child  has  been  made  to  her  satisfaction.2 

But  when  the  admission  is  properly  made  and  entered  of  record,  a 
dismissal  of  the  cause  may  be  pleaded  as  a  former  adjudication.8 

There  can  be  no  judgment  against  the  defendant  where  the  child  is 
shown  to  have  been  still-born. b 

The  defendant  may  waive  an  examination  before  the  justice,  in 
which  case  a  judgment  requiring  his  appearance  at  the  next  term  of 
the  circuit  court  is  sufficient,  without  a  formal  judgment  that  he  is  the 
father  of  the  child,  and  without  an  examination  of  the  mother.0 

The  judgment  of  the  circuit  court  should  require  the  defendant  to  re- 
plevy  the  judgment,  and  upon  failure,  that  he  be  committed  to  jail.d 

But  this  can  only  be  done  where  the  defendant  is  in  custody.6 

1008.  Against  executors,  administrators,  and  guardians. 
— A  judgment  in  an  action  against  an  administrator  or  executor,  as 

(u)  K.  S.  1881,  §  992;  Allen  v.  The  (y)  Heritage  v.  Hedges,  72  Ind.  247. 
State,  4  Blkf.  122;  Neff  v.  The  State,  (z)  Beeves  v.  The  State,  37  Ind. 

3  Ind.  564;  Dickerson  v.  Gray,  2  Blkf.  441 ;  Harness  v.  The  State,  57  Ind  ] ; 

230;  Canfield  v.  The  State,  56  Ind.  168.  Fisher  v.  The  State,  65  Ind.  51. 

(v)  Bright  v.  Sexton,  18   Ind.  186;         (a)   Britton   v.   The   State,    54    Ind. 

Marlett  v.  "Wilson,  30  Ind.  240;  Herit-  535. 
age  v.  Hedges,  72  Ind.  247.  (b)  Canfield   v.  The   State,  56   Ind. 

(w)  K.  S.  1881,  §  992;  Cooper  v.  The  168. 

State,  4   Blkf.   316;    Beeman   v.   The         (c)  Smith  w.  The  State,  67  Ind.  61. 
State,  6  Blkf.  165.  (d)  Hawley  v.  The  State,  69  Ind.  98. 

(x)  Young  v.  The  State,  53  Ind.  536.         (e)  Patterson  v.  Pressly,  70  Ind.  94. 


XXII.]  JUDGMENT.  655 

such,  should  be  against  the  estate  he  represents,  and  not  against  him 
personally.0 

But  where  the  judgment  is  rendered  against  him  personally,  it  is  a 
defect  in  form  that  may  be  amended. d 

The  defect  can  not  be  reached  in  the  supreme  court.  There  must  be 
a  motion  to  correct  the  judgment  in  the  court  below. e 

The  judgment  should  require  that  the  amount  found  be  paid  by  the 
executor  or  administrator  in  the  due  course  of  administration/ 

And  there  can  be  no  execution  thereon  except  where  the  judgment 
directs  the  sale  of  specific  property.8 

In  an  action  to  compel  an  administrator  to  charge  himself  with  ad- 
ditional property,  the  judgment  must  be  against  him  personally.  But 
he  can  not  be  compelled  by  the  judgment  to  give  bond  to  secure  the 
additional  property  with  which  he  is- required  to  charge  himself.h 

Administrator  de  son  tort. — In  an  action  by  a  creditor  or  an  estate 
against  an  administrator  de  son  tort,  there  can  be  no  personal  judgment 
against  the  iutermeddler.  The  judgment  should  be  that  he  account 
to  the  proper  court  for  the  value  of  the  property,  and  ten  per  centum 
thereon.' 

Without  relief. — The  statute  authorizes  a  judgment  without  relief 
against  an  executor,  administrator,  or  guardian,  and  their  sureties,  for 
any  breach  of  duty,  or  for  money  or  property  received  in  their  fiduci- 
ary character.-" 

Ten  per  cent  damages  in  action  on  bond. — In  actions  on  the  bonds 
of  executors  and  administrators  the  judgment  may  include  ten  per 
cent  damages  on  the  amount  recovered.*- 

In  suits  upon  guardians'  bonds  the  same  rule  prevails  generally.1 

But  by  subdivision  3  of  section  2521  of  the  statute,  certain  specific 
duties  are  required  of  guardians ;  and  where  the  action  is  for  a  failure 
to  comply  with  the  provisions  of  this  subdivision,  the  judgment  should 

(c)  Songer  r.  Walker,  1   Blkf.  251 ;         (f )  Johnson  v.  Meier,  62  Ind.  98. 
Priest  u.Martin,  4  Blkf.  311;  Wilt  v.         (g)  R.   S.    1881,   §  682;    Johnson    v. 
Bird,  7  Blkf.  258 ;  Phipps  v.  Addison,     Meier,  62  Ind.  98. 

7    Blkf.  375;    Egbert   v.  The   State,  4  (h)  Pea  v.  Pea,  35  Ind.  387. 

Ind.  399;  Lewis  v.  Reed,  11  Ind.  239;  (i)  Goff  v.  Cook,  73  Ind.  351;    Mc- 

Boyls  v.  Simpson,  23  Ind.  393;  Stein-  Coy  v.  Payne,  68  Ind.  327. 

metz  v.  The  State,  47  Ind.  465;  Huston  ( j)  R.  S.  1881,  §  577;   post,  §  1014. 

v.   Stewart,   64   Ind.   388;    Fessler   v.  (k)   R.  S.  1881,  §  2459. 

Grouse,  73  Ind.  64.  (1)  Baldridge  v.  The  State,  69  Ind. 

(d)  Songer  v.  Walker,  1  Blkf.  251;  166;   Colburn   v.   The   State,   47   Ind. 
Lewis  v.  Reed,  11  Ind.  239.  310. 

(e)  Carter   v.  Zenblin,  68  Ind.  436- 
post,  §  1030. 


656  JUDGMENT.  [CHAP. 

include  ten  per  cent  on  the  ivhole  amount  of  estate,  botii  real  and  personal, 
in  his  hands  belonging  to  the  ward.™ 

lu  the  case  of  Richardson  v.  The  State,  the  measure  of  damages  fixed 
by  section  2521  was  held  to  apply  in  all  cases,  but  the  later  case  of 
Baldriuge  v.  The  State  limits  the  rule  as  above  stated,  and  expressly 
everrules  the  earlier  decision  to  that  extent. 

On.  reports. — An^order  of  court  approving  or  disapproving  the  report 
of  an  executor  or  administrator  or  guardian  is  a  judgment.  If  a  par- 
tial report  the  judgment  is  interlocutory,  if  final  it  is  a  final  judgment." 

A  partial  report  when  approved  is  prima  facie  correct.  It  is  subject 
to  revision  at  any  time  before  final  settlement,  in  a  direct  proceeding 
for  that  purpose,  but  can  not  be  attacked  collaterally.0 

Objections  to  the  partial  report  may  be  made  on  exceptions  to  the 
report  in  final  settlement.p 

Final  settlements  are  conclusive,  and  can  not  be  directly  attacked, 
unless,  within  the  statute  of  limitations,  for  fraud  or  mistake.q 

There  is  an  exception  in  favor  of  the  sureties  on  the  bond  of  the 
executor,  administrator,  or  guardian.  Their  liability  can  not  be  in- 
creased by  any  admissions  or  statements  in  the  reports, whether  partial 
or  final;  and  they  may  controvert  the  correctness  thereof  in  their 
defense  of  an  action  on  the  bond.1" 

It  was  held  otherwise  in  a  number  of  earlier  cases.8 

But  these  cases  were  expessly  overruled  in  the  case  of  Lowryv.  The 
State,  supra. 

By  a  final  report  is  not  meant  the  last  report  of  the  particular  ad- 
ministrator who  has  been  discharged,  but  the  report  in  final  settlement 
of  the  estate.1 

And  in  case  of  a  guardian,  the  settlement  must  be  of  such  a  nature 

(m)  R.  S.  1881,  §2521;  Richardson  (q)  Camper  r.  Hayeth,  10  Ind.  528; 

v.  The  State,  55  Ind.  381;  Bescher  v.  Reed  v.  Reed,  44  Ind.  42  J;  Holland  v. 

The  State,  63  Ind.  302,  321;  Baldridge  The  State,  48  Ind.  391 ;  Sanders  v.  Loy, 

v.  The  State,  69  Ind.  166.  61  Ind  298;  Peacock  v.  Leffler,  74  Ind, 

(n)  Sanders   v.   Loy,   61    Ind.   298;  327;  Candy  v.  Hanmore,  76  Ind.  125. 

Parsons  v.  Mil  ford,  67  Ind.  489;  Hoi-  (r)  Lowry  v.  The  State,  64  Ind.  421 ; 

land  v.  The  State,  48  Ind.  391  ;  Candy  Cogswell  v.  The  State,  65  Ind.  1 ;  Candy 

r.  Hanrnore,  76  Ind.  125.  v.  Hanmore,  76    Ind.  125;    Ohning   v. 

(o)  Goodwin   v.   Goodwin,   48    Ind.  The  City  of  Evansville,  66  Ind.  59. 

584;  The  State  v.  Brutch,  12  Ind.  381 ;  (s)  The  State  v.  Gramer,  29  Ind.  530; 

Barnes  v.  Bartlett,  47  Ind.  98;  Fraim  Bagot  v.  The  State,  33  Ind.  262;   Wil- 

n.    Jlillison,  59   Ind.  123;    Parsons   v.  mer  v.  The   State,  44   Ind.  223;    The 

Milford,  67   Ind.  489 ;  Candy  v.  Han-  State  v.  Prather,  44  Ind.  287. 

more,  76  Ind.  125.  (t)  Dufour  v.  Dufour.  28  Ind.  421. 

(p)  Collins  v.  Tilton,  58  Ind.  374. 


xxn.]  JUDGMENT.  657 

as  to  fully  discharge  him  from  his  trust  and  all  duties  in  regard 
thereto,  arid  leave  nothing  to  be  done  by  him  in  his  fiduciary  capacity." 
It  is  held  that  in  an  action  against  a  guardian,  upon  a  contract  made 
by  him  touching  his  ward's  estate,  the  judgment  should  be  against 
him  personally.7 

1009.  Foreclosure  of  mortgages. — The  statute  authorizes  a 
personal  judgment  to  be  taken  against  any  party  to  the  suit  liable 
upon  any  agreement  for  the  payment  of  any  sum  or  sums  secured  by 
the  mortgage. w 

To  authorize  a  personal  judgment,  the  party  liable  must  appear  to 
the  action  or  be  served  with  personal  process. 

Where  there  is  no  order  or  judgment  for  any  deficiency  that  may 
remain  unpaid  after  the  sale  of  the  land  mortgaged,  there  is  no  per- 
sonal judgment.1 

There  can  be  no  personal  judgment  for  an  amount  not  yet  due. 

Therefore  in  an  action  for  the  foreclosure  of  a  mortgage  securing 
different  installments  of  an  indebtedness,  some  of  which  are  due  and 
some  not  due,  the  court  can  only  order  at  what  time  and  upon  what 
default  any  subsequent  execution  shall  issue  for  the  amounts  not  yet 
due.  There  can  be  no  personal  judgment  therefore 

But  a  personal  judgment  for  a  debt  not  due,  although  erroneous,  is 
not  void  and  can  not  be  collaterally  attacked.2 

"Where. a  part  of  the  indebtedness  is  not  due,  the  court  should  ascer- 
tain whether  or  not  the  land  can  be  sold  in  parcels  without  injury  to 
the  parties ;  and,  if  so,  must  direct  that  so  much  only  of  the  premises 
be  sold  as  will  be  sufficient  to  pay  the  amount  due  with  costs.* 

But  where  the  proof  shows  that  the  land  can  not  be  divided  and  sold 
in  parcels,  without  injury  to  the  interests  of  the  parties,  the  court  may 
order  it  sold  in  solido,  although  it  consists  of  several  distinct  tracts.1' 

If  a  part  of  the  real  estate  has  been  sold,  or  incumbered,  since  the 
recording  of  the  mortgage,  to  different  parties,  and  a  part  is  still  owned 
by  the  mortgagor,  that  part  still  owned  by  him  should  be  ordered  to  be 

(u)  Angevine  v.  Ward,  66  Ind.  460;  (z)  Gall  v.  Fryberger,  75  Ind.  98. 

Parsons  v  Milford,  67  Ind.  489.  (a)  R.  S.  1881,  §1103;  Wainscott  r. 

(v)  Stevenson  v.  Bruce,  10  Ind.  397;  Silvers,  13  Ind.  497;  Harris  v.  Make- 
Lewis  v.  Edwards,  44  Ind.  333.  peace,  13  Ind.  560;  Knarr  v.  Conaway. 

(w)  R.  S.  1881,  \  1097.  42  Ind.  260;  Griffin  v.  Reis,  68  Ind.  '.» : 

(x)  Buckinghouse  v.  Gregg,  19  Ind.  Hannah  v.  Dorrell,  73  Ind.  465 ;  Shot'* 

401.  v.  Boyd,  77  Ind.  223. 

(y)  R.   S.   1881,  I  1102;    Skelton  v.  (b)  Firestone  v.  Klick,  67  Ind.  309. 
Ward,  51  Ind.  46. 
42 


658  JUDGMENT.  [CHAP. 

first  sold,  and  the  other  tracts  in  the  inverse  order  of  the  sales  or  in  • 
cumbrances.0 

In  an  action  against  the  heirs  and  administrator  of  a  deceased  raort 
gagor,  there  can  be  no  personal  judgment  against  either/ 

Under  the  present  statute,  the  administrator  or  executor  can  not 
be  sued  jointly  with  other  persons,  and  no  judgment  can  be  taken 
against  the  estate,  except  by  filing  the  indebtedness,  whether  secured 
by  mortgage  or  not,  as  a  claim  against  the  estate.6 

But  this  does  not  affect  the  right  of  the  mortgagee  to  foreclose,  and 
sell  the  land  for  the  satisfaction  of  the  debt  as  against  the  heirs. 

When  a  deed,  absolute  on  its  face,  is  sued  upon  as  a  mortgage,  the 
judgment  should  declare  it  to  be  a  mortgage,  and  a  judgment  of  fore- 
closure be  rendered  thereon.  To  declare  the  deed  absolute  is  error/ 

The  sale  of  the  land  must  be  ordered  in  all  cases  of  foreclosure^ 

If  there  is  no  express  agreement  in  the  mortgage,  nor  any  separate 
instrument  given  for  the  sum  secured  thereby,  the  remedy  of  the  mort- 
gagee must  be  confined  to  the  property  mortgaged,  and  there  can  be  no 
personal  judgment.11 

The  fact  that  no  personal  judgment  is  taken  in  a  case  where  it  would 
have  been  proper,  does  not  affect  the  validity  of  the  judgment  in  rem.1 

1610.  Vendor's  lien. — The  right  of  the  plaintiff,  in  an  action  for 
purchase-money  for  real  estate,  to  have  the  amount  found  due  declared 
a  lien  upon  the  real  estate  is  based  upon  the  fact  that  the  defendant  has 
not  personal  property  subject  to  execution  sufficient  to  satisfy  the  claim. 
It  is  held,  however,  that  the  complaint  need  not  allege  this  fact;  but, 
where  it  does  not,  it  is  error  to  render  judgment  for  the  sale  of  the 
land  in  the  first  instance.  The  judgment  should  order  that  the  de- 
fendant's personal  property  subject  to  execution  be  first  exhausted, 
and  that,  upon  failure  to  realize  sufficient  to  satisfy  the  amount  found 
due,  the  real  estate,  or  so  much  as  may  be  necessary,  be  sold  to  pay 
the  same.J 

If  it  is  alleged  in  the  complaint,  and  proved  on  the  trial,  that  the 

(c)  Day   v.  Patterson,  18  Ind.  114;         (f )  Smith  v.  Brand,  64  Ind.  427. 
Williams  v.  Perry,  20  Ind.  437;  Aiken         (g)  R.  S.  1881,  g  575. 

v.  Bruen,  21  Ind.  137;  Alsop  u  Hutch-         (h)  R.     8.     1881,     gg    1087,     1096: 

inrris,  25  Ind.  347;  Houston  v.  Houston,  Fletcher  v.  Holmes,  25  Ind.  458. 
67  Ind.  276;  Hohn  v.  Behrman,  73  Ind.         (i)  Truitt  v.  Truitt,  38  Ind.  16. 
120;  McCallum  v.  Turpie,  32  Ind.  146.         ( j)  Scott  v.  Crawford,  12  Ind.  410; 

(d)  Newkirk  v.  Burson,  21  Ind.  129;  Bowen  i:  Fisher,  14  Ind.  104;   Stevens 
Rodman  v.  Rodman,  64  Ind.  65.  v.  Hurt,  17  Ind.  141. 

(e)  R.  S.  1881,  gg  2310,  2311,  2312. 


xxn.]  JUDGMENT.  C59 

defendant  is  insolvent,  or  has  not  personal  property  subject  to  execu- 
tion sufficient  to  pay  the  debt,  the  sale  of  the  real  estate  in  the  first 
instance  may  be  ordered. k 

The  vendor's  lien  is  not  an  original  and  absolute  charge  on  the  land, 
but  only  an  equitable  right  to  resort  to  it  in  case  there  be  no  sufficient 
personal  estate. 

If,  therefore,  the  original  purchaser,  or  any  person  for  him,  has  be- 
come personally  liable  for  the  debt  by  executing  his  note  therefor,  or 
ortherwise,  this  personal  liability  must  be  exhausted,  or  it  must  be 
shown  that  he  is  totally  insolvent,  before  there  can  be  a  judgment  or- 
dering the  sale  of  the  real  estate  in  the  hands  of  a  subsequent  pur- 
chaser, although  he  purchased  with  notice  of  the  lien.1 

ion.  Against  heirs  for  debt  of  ancestor. — The  statute  au- 
thorizes proceedings  against  heirs  for  the  debt  of  the  ancestor,  in  cer- 
tain cases.™ 

If  the  property  descended  to  the  heirs  is  real  estate,  and  is  still  owned 
by  them,  the  judgment  must  be  for  the  sale  of  such  real  estate." 

But  where  the  heir  has  alienated  the  real  estate  in  good  faith,  there 
can  be  no  judgment  for  the  sale  thereof;  but  personal  judgment  may 
be  takeruagainst  such  heir  for  the  amount  of  the  indebtedness  due  from 
him,  the  amount  of  the  judgment  not  to  exceed  the  value  of  such  real 
«state.° 

The  judgment  against  any  heir,  or  his  property,  should  not  exceed 
his  proportionate  share  of  the  indebtedness,  unless  the  others  are  be- 
yond the  reach  of  process.1* 

But  where,  by  the  will,  any  part  of  the  real  estate,  or  any  one  of 
the  devisees  or  legatees  are  made  liable  for  the  debts  of  the  estate, 
the  judgment  should  conform  to  the  provisions  of  the  will  in  this  re- 
spect, i 

Where  any  defendant  has  alienated  the  real  estate  received  by  him, 
but  the  same  is  still  liable,  the  other  property  of  such  defendant  should 
be  first  exhausted,  and  the  judgment  should  so  order/ 

1012.  Judgment  without  relief. — The  words  "without  relief 
in  any  judgment,  contract,  execution,  or  other  instrument  of  writing 

(k)  Bowen  v.  Fisher,  14   Ind.   104;  (n)  R.  S.  1881,  §  2444. 

Stevens  v.  Hurt,  17  Ind.  141.  (o)  R.  S.  1881,  g  2445. 

(1)  Martin  v.  Cauble,  72  Ind.  67.  (p)  R.  S.   1881,   §  2447;   Rinard   v. 

(m)  R.  S.  1881,  §  2442;  Faulkner  v.  West,  48  Ind.  159. 

Larrabee,  76  Ind.  154;    ante,   vol.  I.,  (q)  R.  S.  1881,  §  2448. 

2  423,  and  cases  cited.  (r)  R.  S.  1881,  §  2446. 


660  JUDGMENT. 

or  record,  shall  be  taken,  held,  and  deemed  to  mean  "  without  the  ben- 
efit of  valuation  laws."3 

The  right  to  sell  without  relief  depends  upon  the  judgment.  The 
right  to  render  judgment  without  relief  depends  upon  the  contract,  or 
some  direct  statutory  provision  authorizing  judgment  in  that  form.4 

The  statute  provides  :  "  When  a  judgment  is  to  be  executed  without 
relief  from  appraisement  laws,  it  shall  be  so  ordered  in  the  judgment. 
When  a  plaintiff  has  included  in  one  action  demands  subject  to  the 
appraisement  laws,  with  demands  made  payable  without  any  relief 
from  appraisement  laws,  the  court  may  render  separate  judgments 
upon  such  demands."" 

In  order  to  authorize  separate  judgments,  as  required  by  the  statute, 
the  amount  due  upon  each  cause  of  action  must  be  ascertained  by  the 
verdict  or  finding  of  the  court.  Otherwise  the  judgment  must  be  with 
relief  upon  the  whole  amount." 

Where  the  judgment  for  the  debt  may  be  without  relief  the  judg- 
ment for  costs  in  the  same  form  is  proper. w 

In  criminal  cases  the  judgment  can  not  be  rendered  without  relief. r 

Property  conveyed  by  a  debtor,  with  intent  to  hinder,  delay,  or  de- 
fraud creditors,  may  be  sold  without  appraisement.7 

This  provision  of  the  statute  only  authorizes  a  judgment  ordering 
the  sale  of  the  specific  property  without  relief,  and  does  not  apply  to 
an  action  to  recover  a  personal  judgment  for  the  value  of  the  property.2 

That  a  judgment  on  a  claim  against  an  estate  is  without  relief  is  a 
harmless  error,  as  no  execution  can  issue  thereon. a 

Objection  to  the  rendition  of  judgment  without  relief  must  be  made 
at  the  time  or  it  is  waived. b 

Judgments  by  or  against  plank,  macadamized,  or  gravel  roads  may 
be  without  relief.0 

In  an  action  for  tort  the  judgment  can  not  be  rendered  without  re- 
lief.-1 

(s)  K.  S.  1881,  \  1286.  (y)  K.  S.  1881,  §  743;  Whitehall  v. 

(t)  Eeilly  ?.  Ellsworth,  11  Ind.  222;  Crawford,  37  Ind.  147. 

Shirk   v.  Wilson,  13   Ind.  129;    Cum-  (z)  Whitehall  v.  Crawford,  37  Ind. 

mings  v.  Pfouts,   13   Ind.  144;    Hay-  147. 

•woith  v.  The  Junction   R.  K.  Co.,  13  (a)  Anderson    v.   The    Greensburg, 

Ind.   348;    Baker  v.  Roberts,  14   Ind.  etc.,  Turnpike  Co.,  48  Ind.  467. 

552;  Ham  v.  Greve,  41  Ind.  531.  (b)  Johnson  v.  Prine,  55  Ind.  351. 

fu)  R.  S.  1881,  §  576.  (c)  R.  S.  1881,  §  3646;  Steinmeitz  v. 

(v)  Jarboe  v.  Brown,  39  Ind.  549.  The  Versailles,  etc.,  Turnpike  Co.,  57 

(w)  Martindale  v.  Tibbetts,  16  Ind.  Ind.  457. 

200.  (d)  Smith  v.  Davis,  58  Ind.  434. 

(x)  Croy  v.  The  State,  32  Ind.  384. 


xxn.]  .HMXJMKXT.  661 

Where  a  surety  has  been  compelled  to  pay  the  debt  of  his  principal 
which  was  collectible  without  relief,  the  judgment  in  favor  of  such 
surety  against  the  principal,  for  the  amount  so  paid,  may  be  in  the 
same  form.6 

1013.  Against  public  officers  and  others  acting  in  a  fidu- 
ciary capacity  ;  -without  relief  or  stay. — "  Hereafter  all  judg- 
ments recovered  against  any  sheriff,  constable,  or  other  public  officer, 
administrator,  executor,  or  any  other  person  or  corporation,  or  the 
sureties  of  any  or  either  of  them  for  money  collected  or  received  in  a 
fiduciary  capacity ;  or  for  a  breach  of  any  official  duty  ;  or  for  money 
or  other  articles  of  value  held  in  trust  for  another,  shall  be  collectible 
without  stay  of  execution  or  benefit  of  the  valuation  or  appraisement 
laws  of  this  state." f 

Where  the  cause  of  action  falls  within  the  provisions  of  this  section 
it  must  be  provided  in  the  judgment  that  the  same  is  collectible  with- 
out relief  or  stay. 

The  statute  applies  to  suits  upon  the  bonds  of  public  officers,  execu- 
tors, administrators,  and  guardians.8 

We  have  another  statute,  however,  which  provides  that  in  an  action 
against  an  executor  or  administrator  on  his  bond  no  stay  of  execution  or 
benefit  of  valuation  or  appraisement  laws  shall  be  allowed  as  to  the 
property  of  the  principal. h 

The  discrepancy  between  the  two  sections  will  be  noticed.  Under 
the  general  provision  of  the  code  the  judgment  may  be  without  re- 
lief or  stay  as  against  both  the  prinipal  and  surety ; '  while,  under  the 
special  act  regulating  the  settlement  of  decedents'  estates,  the  right  is 
confined  to  the  property  of  the  principal.  The  general  provision  is  am- 
ply broad  enough  to  cover  all  that  is  contained  in  the  special  section, 
and  goes  farther  by  authorizing  the  same  form  of  judgment  against 
the  surety. 

Both  of  the  acts  went  into  force  at  the  same  time. 

The  general  provision  of  the  code  has  been  held  to  apply  to  suits  on 
guardians'  bonds,  and  they,  by  an  express  provision  of  the  statute,  are 
governed  by  the  law  authorizing  suits  on  the  bonds  of  executors  and 
administrators^ 

It  seems  clear,  therefore,  that,  in  a  suit  on  the  bond  of  an  executor, 

(e)  R.  S.  1881,  §  1217.     See  further        (i)  R.  S.  1881,  §  577. 

as  to  appraisement,  post,  §  1157.  ( j)  R.  S.  1881,  §  2525;  Potter  v.  The 

(f)  R.S.  1881,  §577;  Piercer.  Mills,     State,   23   Ind.   607;    Bescher  v.   The 
21  Ind.  27.  State,  63  Ind.  302,  321  ;   Stevenson  r. 

(g)  Potter  r.  The  State,  23  Ind.  607.     The  State,  71  Ind.  52. 
(h)  R.  S.  1881,  §2460. 


662  JUDGMENT.  CHAP. 

administrator,  or  guardian,  the  judgment  against  the  sureties,  as  well 
as  the  principal,  may  be  without  relief. 

1014.  On  bonds,  written  undertakings,  and  recognizances. 

— "  Hereafter,  all  judgments  recovered  on  bonds,  written  undertak- 
ings, or  recognizances  executed  in  any  legal  proceeding,  civil  or  crim- 
inal, shall  be  collectible  without  relief  from  valuation  or  appraisement 
laws  of  the  State  of  Indiana."15 

This  section  is  limited  to  obligations  executed  "  in  any  legal  proceed- 
ing, civil  or  criminal,"  and  does  not  authorize  a  judgement  without  the 
stay  of  execution,  as  in  the  next  preceding  section. 

JUDGMENT   FOR   COSTS. 

1015.  Recovered  in  civil  actions. — "  In  all  civil  actions,  the 
party  recovering  judgment  shall  recover  costs,  except  in  those  cases  in 
which  a  different  provision  is  made  by  law."1 

The  right  to  recover  costs  is  given  exclusively  by  statute."1 
And  by  this  section  the  right  to  recover  costs  is  limited   to  civil 
actions." 

What  is  a  civil  action  has  been  considered  in  another  place.0 

1016.  Exception  ;  recovery  under  fifty  dollars. — "  In  actions 
for  money  demands  on  contract  commenced  in  the  circuit  or  superior 
courts,  if  the  plaintiff  recover  less  than  fifty  dollars,  exclusive  of  costs, 
he  shall  pay  costs,  unless  the  judgment  has  been  reduced  below  fifty 
dollars  by  a  set-off  or  counterclaim  pleaded  and  proved  by  the  defend- 
ant, in  which  case  the  party  recovering  judgment  shall  recover  costs. 

When  the  judgment  is  reduced  below  fifty  dollars  by  proof  of  pay- 
ments, the  defendant  shall  recover  costs ;  provided,  that  in  all  actions 
for  money  demands  on  contract,  where  one  or  more  defendants  neces- 
sary to  a  full  determination  of  such  cause  are  non-residents  of  the 
county  in  which  such  suit  is  brought,  but  are  residents  of  the  State  of 
Indiana,  and  have  been  duly  served  with  process  in  such  action,  the 
plaintiff  shall  recover  costs,  although  he  may  recover  judgment  for  less 
than  fifty  dollars. "P 

The  proviso  of  this  section  was  added  by  way  of  amendment  in 
1881, q  and  allows  a  judgment  for  costs  where  the  plaintiff  may  join  all 

(k)  K.  S.  1881,  §  578.  (n)  Knox  v.  Fesler,  17  Ind.  254. 

(1)  K.  S.  1881,  I  590;    Stow  v.  Gra-         (o)  Ante,  vol.  I.,  %  176,  177,  178. 
ham,  55  Ind.  10.  (p)  R.  S.  1881,  §  591  ;  Stow  v.  Gra. 

(m)  Dearinger  v.  Ridgeway,  34  Ind.  ham,  55  Ind.  10. 
54.  (q)  R.  S.  1876,  p.  194,  §  397. 


XXII.]  JUDGMENT.  663 

of  the  parties  in  the  circuit  court,  but  can  not  before  a  justice  of  the 
peace,  on  account  of  their  non-residence  of  the  county. 

This  provision  of  the  statute  is  limited  to  actions  for  "money  de- 
mtuids  on  contract." r 

And  does  not  apply  where  the  amount  of  recovery  is  reduced  below 
fifty  dollars  by  proof  of  set-off  or  counterclaim.3 

Under  the  statute  of  1843,  if  the  "  sum  due  or  demanded"  should 
not  exceed  fifty  dollars,  the  plaintiff  must  pay  the  costs.' 

It  was  held  under  that  statute  that  the  "sum  due  or  demanded" 
must  be  determined  by  the  plaintiff's  evidence  on  the  trial.  If  his  evi- 
dence entitled  him  to  a  judgment  for  more  than  fifty  dollars,  he  was 
entitled  to  recover  costs,  although  the  defendant's  evidence  might  re- 
duce the  recovery  below  that  sum.u 

Under  the  present  statute,  the  rule  is  quite  different.  The  question 
of  the  right  to  a  judgment  for  costs  depends  as  much  upon  the  evi- 
dence of  the  defendant  as  upon  that  of  the  plaintiff,  if  the  evidence 
goes  to  establish  payment.  Where  there  is  proof  of  payments  by 
the  defendant,  the  rights  of  the  parties,  as  to  costs,  is  determined  by 
the  actual  recovery." 

It  is  not  sufficient  that  the  defendant  may  have  pleaded  a  set-off  or 
counterclaim.  One  or  the  other  must  be  proved,  so  far,  at  least,  as  to 
reduce  the  plaintiff's  recovery  to  fifty  dollars  or  less,  to  effect  the  ques- 
tion of  costs. w 

The  statute  applies  to  actions  on  bonds  payable  to  the  state  in  the 
name  of  the  state,  on  the  relation  of  the  party  interested. x 

If  the  amount  of  the  plaintiff's  recovery  is  reduced  to  fifty  dollars 
or  less  by  proof  of  payments  made  either  before  or  after  suit  brought, 
the  defendant  recovers  costs. y 

Proof  of  part  performance  of  a  contract  sued  on  has  been  held  to  be 
within  the  provision  relating  to  set-off  and  counterclaim,  although  not 
pleaded  as  such.2 

The  decision  is  placed  upon  the  ground  that  the  plaintiff  makes  out 

(r)  Brock   v.   Parker,   5    Ind.   538;  (t)  K.  S.  1843,  pp.  864,  865. 

Hutchins  v.  Smith,  8   Blkf.  122;    Ed-  (u)  Dayton    v.   Hall,   8    Blkf.   556; 

monds  v.  Paskins,  8  Blkf.  196;   Ward  Proctor  v.  Bailey,  5   Blkf.  495;    Hig- 

v.  Herschberger,  38  Ind.  76 ;  The  Co-  man  v.  Brown,  3  Ind.  430. 

lumbus,  etc.,  R.  R.  Co.  v.  Watson,  26  (v)  Wathen  v.  Pare,  17  Ind.  320. 

Ind.  60;  Sutherland  w.  Venard,  32  Ind.  (w)  Ward  v.  Hershberger,  38  Ind. 

483.  76. 

(s)  Stevenson  v.  Ennis,  39  Ind.  216;  (x)  The  State  v.  Parker,  33  Ind.  285. 

The  Columbus,  etc.,  R.  R.  Co.  v.  Wat-  (y)  Wathen  v.  Fare,  17  Ind.  320. 

son,  26  Ind.  50;  Poag  v.  LaDue,  7  Ind.  (z)  Martin  v.  Custer,  18  Ind.  99. 
675. 


CG4  JUDGMENT.  [CHAP. 

a.  prima  facie  right  to  recover  above  fifty  dollars,  and  part  performance 
is  a  counterclaim. 

Under  the  present  statute,  a  counterclaim  is  an  affirmative  cause  of 
action,  and  must  be  pleaded  as  such  to  be  available. a 

But  being  pleaded  as  a  defense,  if  in  fact  it  is  a  counterclaim,  does 
not  make  the  pleading  an  answer.  It  may  be  treated  as  a  counter- 
claim.1* 

If,  however,  the  matter  is  not  so  pleaded  as  to  constitute  a  cause  of 
action  in  the  defendant,  it  should  not  be  treated  as  a.  counterclaim  in 
determining  the  question  of  costs. 

"Where  both  a  set-off  and  payment  are  pleaded,  and  a  general  verdict 
is  returned  for  fifty  dollars  or  less,  and  it  can  not  be  ascertained  there- 
from whether  the  claim  was  reduced  below  the  amount  fixed  by  the 
statute  by  the  one  or  the  other,  judgment  should  be  rendered  in  favor 
of  the  plaintiff  for  coSts.c 

1017.  In  actions  for  damages  solely. — "In  all  actions  for 
damages  solely,  not  arising  out  of  contract,  if  the  plaintiff  do  not  re- 
cover five  dollars  damages,  he  shall  recover  no  more  costs  than  dam- 
ages, except  in  actions  for  injuries  to  character  and  false  imprisonment, 
and  where  the  title  to  real  estate  comes  in  question. "d 

Under  this  section,  the  defendant  is  not  entitled  to  judgment  for 
costs.  The  statute  simply  limits  the  amount  of  the  plaintiff's  recovery 
where  the  damages  assessed  are  less  than  five  dollars.  In  order  to  pre- 
sent the  question,  therefore,  the  defendant  should  move  in  the  court 
be!6w  that  the  plaintiff  recover  no  more  costs  than  the  damages  found 
in  his  favor,  and  not  move  for  a  judgment  in  the  defendant's  favor  for 
all  costs  except  that  sum. 

The  effect  of  the  statute  is  to  leave  both  parties  without  a  judgment 
for  costs,  except  the  limited  amount  allowed  the  plaintiff,  and,  with 
that  exception,  each  party  must  pay  his  own  costs.6 

The  statute  excepts  actions  where  the  title  to  real  estate  comes  in 
question.  Whether  the  title  is  in  question  can  not  always  be  deter- 
mined by  the  pleadings.  If,  upon  the  trial,  the  evidence  shows  that 
the  title  to  real  estate  is  not  in  controversy,  the  statute  applies,  although 
by  the  pleadings  evidence  controverting  it  would  be  competent.* 

(a)  R.  S.  1881,  g  357;   ante,  vol.  I.,  (e)  Sinclair  ?;.  Roush,  14   Ind.  450; 
$  553,  665.  Willman  v.  Clouser,  16  Ind.  318. 

(b)  Ante,  vol.  L,  §  678.  (f)  Dodd  v.   Sheeks,   5    Blkf.   592; 

(c)  Hatwood   v.  Campbell,   51    Ind.  Sinclair  v.  Roush,  14  Ind  450;  Crom- 
83.  well  v.  Lowe,  14  Ind.  234. 

(d)  R.  S.  1881,  §  592. 


xxn.]  JUDGMENT.  665 

But  if  the  evidence  shows  that  the  title  was  in  question,  the  plaint- 
iff is  entitled  to  judgment  for  costs.8 

And  where  the  evidence  is  not  in  the  record,  the  supreme  court  will 
presume  in  favor  of  the  action  of  the  court  below.h 

The  jury  can  not  determine  the  question  of  costs.  It  is  controlled 
by  the  statute-.' 

The  section  does  not  apply  to  a  cause  appealed  from  a  justice  of  the 
peace.J 

Where  the  plaintiff  seeks  and  obtains  other  relief  than  a  judgment 
for  damages,  for  example,  an  injunction,  the  section  does  not  apply. 
It  only  applies  to  actions  for  damages  solely. k 

The  statute  provides  that,  where  lands  are  attached  and  the  attach- 
ment is  sustained,  the  plaintiff  may  recover  costs,  although  he  obtains 
judgment  for  less  than  fifty  dollars.1 

An  action  for  damages  against  an  administrator  de  son  tort  is  within 
the  statute. 

1018.  Relators  liable  for  costs. — "  Relators  and  persons  or  cor- 
porations for  whose  use  an  action  is  brought,  whether  such  use  is  shown 
by  the  pleadings  of  the  plaintiff  or  defendant,  shall  be  liable  for  costs 
jointly  with  the  actual  parties  to  the  action.  But  when  the  state  is 
plaintiff,  the  relator  only  shall  be  liable,  and  judgment  for  costs  shall 
be  rendered  accordingly.""1 

The  section  of  the  statute  embraces  two  classes  of  actions :  1.  Where 
the  action  is  brought  by  a  private  individual  for  the  use  of  another. 
2.  Where  the  action  is  brought  in  the  name  of  the  state  for  the  use  of 
a  private  individual  or  corporation.  In  the  first  class,  the  party  in 
whose  name  the  action  is  brought  is  liable  for  costs,  but  the  person  for 
whom  he  sues  is  also  liable  jointly  with  him.  In  the  second  class,  the 
liability  for  costs  is  upon  the  relator  alone." 

Where  an  action  is  brought  on  the  relation  of  an  officer  whose  duty 
it  is  to  sue  for  the  benefit  of  a  county  or  township,  the  judgment  must 
be  against  such  county  or  township  if  defeated,  &nd  not  against  the  of- 
ficer.0 

(g)  Holmes  v.  Wright,  36  Ind.  383.  (k)  Douglas  v.  Blankenship,  50  Ind. 

(h)  Stewart  v.  Henry,  5  Blkf.  445;  160. 

Burnett  v.  Coffin,  4  Ind.  218;  Holmes  (1)  R.  S.  1881,  §697. 

v.  Wright,  36  Ind.  383.  (m)  R.  S.  1881,  §  593. 

(i)  Conner  v.  Winton,  8  Ind.  315.  (n)  The  State  v.  Beem,  3  Blkf.  222. 

(j)  Castle  v.   House,   41    Ind.    333;  (o)  Sebrell  v.  Fall  Creek  Township, 

Brown  v.  Snavelly,24  Ind.  270;  Brown  27  Ind.  86. 
v.  Duke,  46  Ind.  343. 


666  JUDGMENT.  [CHAP. 

As  a  rule  there  can  be  no  judgment  against  the  state. p 
But  the  governor  may  direct  suit  to  be  brought,  on  his  relation,  for 
the  breach  of  the  condition  of  any  bond  by  which  the  state  is  injured, 
unless  otherwise  provided  by  law,  and  all  costs  taxed  against  such  rela- 
torwill  be  paid  by  the  state. q 

1019.  When  apportioned. — Where  there  are  several  plaiufiffs 
the  costs  may  be  apportioned,  and  where  there  are  several  issues,  some 
of  which  are  determined  in  favor  of  the  plaintiffs,  and  others  in  favor 
of  the  defendants,  the  parties  are  entitled  each  to  recover  the  costs 
upon  the  issues  determined  in  his  favor/ 

Where  an  order  has  been  made  by  the  court  below  apportioning  the 
costs  on  the  several  issues,  it  will  be  presumed  to  be  right  on  appeal, 
in  the  absence  of  a  showing  to  the  contrary.8 

1020.  Where  suits  can  be  joined ;   costs  in  one  only. — 
"When  the  plaintiff  shall,  at  the  same  court,  bring  several  actions 
against  the  defendant  upon  demands  which  might  have  been  joined  in 
one  action,  he  shall  recover  costs  only  in  one  action  unless  it  shall  ap- 
pear to  the  court  that  the  actions  affect  different  rights  or  interests,  or 
other  sufficient  reasons  exist  why  the  several  demands  ought  not  to 
have  been  joined  in  one  action."1 

The  statute  does  not  apply  where  one  demand  only  is  due.  The 
plaintiff  may  sue  at  once  upon  either  demand  falling  due,  although 
the  other  that  might  be  joined  will  mature  in  time  to  sue  at  the 
same  term." 

The  two  causes  of  action  must  exist  at  the  time  the  first  action  is 
brought  or  the  plaintiff  is  entitled  to  recover  his  costs  in  the  second  suit.v 

1021.  On  appeal  from  justice  of  the  peace. — It  is  provided, 
in  the  justice's  act:  "  Costs  shall  follow  judgment  in  the  circuit  court 
on  appeals,  with  the  following  exceptions : 

"First.  If  either  party,  against  whom  judgment  has  been  rendered, 
appeal  and  reduce  the  judgment  against  him  five  dollars  or  more  he 

(p)  R.  S.  1881,  §§  593,  1726.  (s)  Jamieson     v.    The     Board     of 

(q)  R.  S.  1881,  I  5585.  Comm'rs  of  Cass  County,  56  Ind.  466. 

(r)  R.   S.   1881,   §  594;    Sidener   v.  (t)  R.  S.  1881,  §  595. 

Spaugh,  26  Ind.  317;  Acker  v.  McCul-  (u)  Wade  v.  Musselman,  15  Ind.  77. 

lough,  50  Ind.  447;  Jamieson  v.  The  (v)  The  Ft.  Wayne,  etc.,  R.  R.  Co. 

Board  of  Comm'rs  of  Cass  County,  56  v.  Clark,  59  Ind.  191. 

Ind.  466;    Dill   v.  O'Ferrell,  69   Ind. 

600. 


XXII.]  JUDGMENT.  QG7 

shall  recover  his  costs  in  the  circuit  court  when  the  appellant  appeared 
before  the  justice. 

"  Second.  If  either  party,  in  whose  favor  judgment  has  been  ren- 
dered, appeal  and  do  not  recover  at  least  five  dollars  more  than  he  re- 
covered before  the  justice,  the  appellee  shall  recover  his  costs  in  the 
circuit  court." w 

Under  the  first  clause  of  this  section  the  appellant  must  have  ap- 
peared to  the  action  before  the  justice." 

But  where  the  defendant  appears  before  the  justice  and  files  an 
answer,  this  is  such  an  appearance  as  will  entitle  him  to  a  judgment 
for  costs  on  appeal,  although  he  fails  to  appear  at  the  trial  and  refuses 
to  defend.7 

This  section  contains  the  only  exceptions  in  actions  brought  before 
justices  of  the  peace  to  the  general  rule  that  costs  follow  the  judgment 
on  appeal.2 

In  determining  whether  the  judgment  recovered  before  the  justice 
has  been  reduced  five  dollars  or  not  the  question  of  interest  should  not 
be  considered.3 

The  rights  of  the  parties  must  be  governed  by  the  amounts  for  which 
the  two  judgments  are  recovered.  Therefore  if  the  defendant  ap- 
peals, and  fails  to  reduce  the  judgment  of  the  justice  five  dollars,  he 
must  pay  the  costs,  although  his  failure  to  reduce  the  amount  results 
solely  from  the  interest  having  accumulated  between  the  rendition  of 
the  two  judgments. 

This,  it  is  held,  is  the  proper  construction  of  the  statute,  but  it  is 
clearly  wrong  in  principle.  It  must  follow,  from  this  rule,  that  where 
the  plaintiff  appeals  from  a  judgment  in  his  favor,  and  increases  the 
amount  five  dollars,  he  is  entitled  to  recover  his  costs,  although  the  in- 
crease is  interest  accumulated  since  the  first  judgment  was  rendered, 
and  the  judgment  of  the  circuit  court  shows  that  he  recovered  the  full 
amount  due  him  in  the  first  instance.  If  the  amounts  of  the  two 
judgments  must  control  under  the  first  clause,  it  must  necessarily 
under  the  second,  and  in  both  cases  it  is  so  palpably  wrong  as  to  chal- 
lenge the  correctness  of  the  construction  given  the  statute. 

(w)  R.   S.   1881,   §  1505;    Carter   v.  Duke,  46  Ind.  343 ;  ante,  §  1017;  Topf 

Berkshire,  8  Blkf.  193.  v.  King,  26  Ind.  391 ;  Scary  v.  Brush, 

(x)  Beall  v.  Rowland,  32  Ind.  368.  42  Ind.  172. 

(y)  Holcomb  v.  McDonald,  12  Ind.  (a)  Turner  v.  Simpson,  12  Ind.  413; 

566;  Hall  v.  Reynolds,  14  Ind.  472.  Widup  v.  Gibson,  53  Ind.  484. 

(z)  Brown  v.  Snavely,  24  Ind.  270; 
Castle  v.  House,  41  Ind.  333 ;  Brown  v. 


668  JUDGMENT.  [CHAP. 

The  question  of  the  right  to  recover  costs  does  not  depend  upon  the 
evidence,  but  upon  the  amount  of  the  judgments. b 

In  determining  whether  the  party  appealing  has  gained  or  lost  five 
dollars,  the  costs  recovered  before  the  justice  may  be  considered.  Thus, 
the  defendant  offered  to  confess  judgment  in  the  justice's  court,  and 
the  plaintiff  recovered  less  than  the  amount  offered,  thus  making  him 
liable  for  costs;  but,  upon  appeal  by  him,  he  recovered  more  than  the 
sum  offered,  but  not  sufficient  to  increase  his  judgment  five  dollars,  it 
was  held  that,  by  his  recovery  on  appeal,  it  appeared  that  the  judg- 
ment against  him  in  the  justice's  court,  for  costs,  was  wrong,  and  that 
the  costs,  together  with  the  increase  in  his  judgment,  being  over  five 
dollars,  he  was  entitled  to  recover  full  costs.0 

The  fact  that  the  difference  in  the  amount  of  the  two  judgments  is 
the  result  of  an  amendment  in  the  circuit  court  does  not  change  the 
effect  of  the  statute. d 

The  party  may  avoid  the  effect  of  an  appeal  by  entering  a  rtmittitur, 
unless  the  judgment  is  reduced  five  dollars  below  the  justice's  judgment, 
after  deducting  the  amount  remitted.6 

It  was  held,  in  an  early  case,  that  the  remittitur  must  be  entered  be- 
fore the  rendition  of  the  judgment,  and  judgment  be  entered  for  the 
amount  of  the  verdict,  less  the  amount  remitted. f 

But  this  case  is  clearly  overruled  by  the  later  case  cited,  although 
not  referred  to  therein. 

Where  a  judgment  is  rendered  against  a  party  for  less  than  five  dol- 
lars, and  he  recovers  judgment  on  appeal,  he  recovers  his  costs.6 

The  statute  applies  to  an  action  of  replevin.11 

It  was  held,  prior  to  the  revision  of  1881,  that,  on  appeal  from  a 
city  court,  in  a  case  where  that  court  was  given  greater  jurisdiction 
than  justices  of  the  peace,  the  section  under  consideration  was  not  ap- 
plicable, and  costs  followed  the  judgment  in  the  circuit  court.' 

But,  under  the  present  statute,  city  courts  have  no  greater  jurisdic- 
tion than  justices  of  the  peace. J 

And  the  practice  in  case  of  appeals  is  governed  by  the  law  regulat- 
ing the  practice  in  appeals  from  justices  of  the  peace.k 

(b)  Hall  v.  Reynolds,  14  Ind.  472.  (h)  Brown   v.    Duke,   46   Ind.  343; 

(c)  Wallace  v.  Hays,  2 )  Ind.  252.  Polk  v.  Nickens,  63  Ind.  439. 

(d)  Anthony   v.    Fullhart,   68    Ind.  (i)  Dotson  v.  Bailey,  76  Ind.  434. 
659.  (j)  R.  S.  1881,  l\  1314,3206;    ante, 

(e)  Clark  v.  Milburn,  62  Ind.  203.  vol.  I.,  §  33. 

(f )  Crockett  v.  Calvert,  8  Ind.  127.  (k)  E.  S.  1881,  \  3206,  3216. 

(g)  Brinnaman    v.  Grover,  16   Ind. 
347;  Sutherland  v.  Flynn,  16  Ind.  36. 


XXII.]  JUDGMENT.  C69 

If  the  party  recovering  judgme'nt  appeals,  and  fails  to  increase  his 
judgment  five  dollars,  he  must  pay  the  costs  in  the  circuit  court.1 

The  section  under  consideration  was  held,  in  one  case,  to  be  uncon- 
stitutional."1 

But  the  case  has  been  expressly  overruled.11 

1022.  On  offer  to  allow  or  confess  judgment. — Where  the 
defendant  offers  to  confess  judgment  for»a  certain  sum  and  the  plain- 
tiff refuses  to  accept,  and  on  the  trial  he  recovers  no  more,  the  defend- 
ant is  entitled  to  judgment  against  him  for  all  costs  accruing  after  the 
offer  to  confess  is  made.0 

Where  the  offer  is  to  allow  judgment,  before*  suit,  and  an  action  is 
subsequently  brought  in  which  the  plaintiff  does  not  recover  more  than 
the  amount  offered  to  be  confessed  he  must  pay  all  the  costs. p 

1023.  Claims  against  estates. — In  claims  against  estates  the 
general  rule  prevails  that  costs  follow  the  judgment.     But  in  order  to 
entitle  himself  to  costs  the  claimant  must  file  his  claim  within  one 
year  from  the  time  of  giving  notice  of  the  appointment  of  an  execu- 
tor or  administrator.*1 

The  time  does  not  commence  to  run  from  the  appointment,  but  from 
the  time  of  giving  notice  thereof. r 

The  claim  must  be  accompanied  by  an  affidavit  of  the  claimant,  his 
agent,  or  attorney,  that  the  claim,  after  deducting  all  credits  to  which 
the  estate  is  entitled,  is  justly  due  and  wholly  unpaid,  or  the  claimant 
will  be  bound  for  all  costs  in  the  prosecution  of  the  claim." 

1024.  Disclaimer. — In  actions  to  recover  possession  of  real  estate, 
or  to  determine  conflicting  claims  thereto,  the  defendant  may  file  a  dis- 
claimer of  any  interest  in  the  matter  in  controversy.' 

The  filing  of  a  disclaimer  terminates  the  action  as  against  the  de- 
fendant filing  it,  and  entitles  him  to  a  judgment  against  the  plaintiff 
for  costs." 

1025.  Reversal  by  supreme  court. — A  reversal  by  the  supreme 

(1)  Robinson  v.  Skipworth,  23  Ind.  (q)  R.  S.  1881,  ?  2310. 

111.       '  (r)  Floyd  v.  Miller,  61  Ind.  224,  2-8. 

(m)  Kuhns    v.   Krammis,    20    Ind.  (s)  R.  S.  1881,  §  2310. 

490.  (t)  R.  S.  1881,  §  1072. 

(n)  Robinson  v.  Skipworth,  23  Ind.  (u)  Ante,  vol.  I.,  $  555,  556;    Ers- 

311.  kine  v.  McCutchan,  9  Ind.  255;    Me-- 

(o)  R.  S.  1881,  §  514;  ante,  §  999.  Carnan  v.  Cochran,  57  Ind.  166. 

(p)  R.  S.  1881,  §  514;  ante,  §  1000. 


670  JUDGMENT.  [CHAP. 

court  carries  costs  against  the  losing  party  back  to  the  first  error  of  the 
court  below  on  which  the  judgment  of  reversal  is  based.7 

Where  the  error  occurs  in  the  trial  of  the  cause,  and  has  the  effect 
to  render  the  proceedings  erroneous  from  the  first,  the  reversal  carries 
costs  back  to  the  issues,  including  costs  of  subpoenas  and  their  service, 
docketing,  making  up  the  issues  and  entries  to  the  beginning  of  the 
trial,  as  well  as  the  costs  of  the  trial. w 

Any  error  that  is  cause  for*  a  new  trial  must,  under  this  rule,  carry 
all  costs  back  to  the  commencement  of  the  trial,  whether  the  proceed- 
ings prior  thereto  are  affected  or  not,  as  the  error  causing  a  mistrial 
necessarily  affects  the  whole  trial,  and  places  the  parties  where  they 
were  at  the  closing  of  the  issues.  As  a  new  trial  is  rendered  neces- 
sary by  the  reversal,  and  the  witnesses  must  be  subpoenaed  again,  the 
losing  party  in  the  supreme  court  must  pay  the  costs  of  issuing  the 
subpoenas  in  the  first  trial/ 

When  the  cause  is  affirmed  in  whole  the  appellee  recovers  costs. 
Where  the  cause  is  reversed  in  part,  costs  may  be  awarded  as  the  court 
may  deem  right.8 

1026.  Adjudged  before  final  judgment. — When  an  order  for 
the  payment  of  costs  is  made  before  the  cause  is  terminated,  judg- 
ment should  be  rendered  therefor  at  the  time.' 

This  section  may  be  applied  where  either  party  is  ordered  to  pay  the 
costs  of  a  continuance,  or  the  costs  arising  upon  any  interlocutory 
order  of  the  court. 

1027.  Belongs  to  the  party  recovering  the  judgment. — The 

statute  authorizing  the  recovery  of  costs  proceeds  upon  the  theory  that 
each  party  pays  his  costs  as  the  cause  proceeds.  But  whether  the  costs 
are  paid  by  the  party  or  not,  the  judgment  therefor  belongs  to  him  ab- 
solutely, and  may  be  collected  or  sued  upon,  and  draws  interest  the 
same  as  the  judgment  for  the  debt.u 

1028.  Security  for  costs. — Where  the  plaintiff  is  a  non-resident 

(v)  R.  S.  1881,  §  664;  Doyle  v.  Kiser,  (s)  R.  S.  1881,  ?  664. 

8  Ind.  396.  (t)  R.  S".  1881,  §  596. 

(w)  Doyle  v.  Kiser,  8  Ind.  396;  Con-  (u)  Armsworth  v.  Scotten,  29   Ind, 

nerw.  Winton,  10  Ind.  25;  Eigenmann  495;  Miller  v.  The  State,  61  Ind.  503; 

v.  Kerstein,  72    Ind.   81;    Winton   v.  Hays  v.  Boyer,  59  Ind.  341;  Goodwin 

Conner,  24  Ind.  107.  v.    Smith,    68    Ind.    301 ;    Palmer    v. 

(r)  Conner  v.  Winton,  10  Ind.  25-  Glover,  73  Ind.  529. 
Eigenman  v.  Kerstein,  72  Ind.  81. 


XXH.J  JUDGMENT.  671 

of  the  state,  he  must  file  in  the  office  of  the  clerk  an  undertaking  for 
costs. 

The  undertaking  must  be  made  payable  to  the  defendant,  and  be  ap- 
proved by  the  clerk.7 

The  failure  to  give  the  necessary  bond  is  not  a  cause  for  dismissal  if 
the  plaintiff  will  file  the  same  in  open  court  when  ordered. w 

The  bond  can  not  be  required  where  there  are  several  plaintiffs  and 
any  of  them  reside  in  the  state.1 

The  bond  may  be  required  at  any  stage  of  the  cause,  where  it  is 
shown  that  the  plaintiff  was,  at  the  commencement  of  the  action,  or 
has  become  since,  a  non-resident. y 

The  fact  of  non-residence  must  be  proved  by  affidavit,  and  no  coun- 
ter affidavits  are  allowed.2 

The  statute  applies  to  non-resident  administrators.* 

In  a  suit  on  the  bond,  only  the  costs  of  the  defendant  in  a  former 
action  can  be  recovered.1" 

1029.  Form  of  judgment  for  costs. — A  judgment  for  costs  is 
usually  rendered  before  the  costs  are  taxed  or  the  amount  ascertained. 
It  is  held,  therefore,  that  it  is  not  necessary  that  such  judgment  shall 
show  the  amount  of  costs  recovered.     This  must  appear  from  the  fee 
book,  which  is  a  public  record  that  must  be  kept  by  the  clerk.     There- 
fore, the  clerk's  entries  of  costs  therein  are  binding  upon  the  parties, 
and,  in  connection  with  the  judgment,  fix  and  determine  the  amount 
of  costs  recovered.0 

If  there  is  any  error  in  the  amount  as  shown  by  the  fee  books,  it 
must  be  corrected  by  a  proceeding  to  tax  the  costs,  and  can  not  be 
reached  collaterally. d 

HOW  DEFECT  IN  FORM  REACHED. 

1030.  By  motion  in  the  court  below. — It  is  a  well-settled  rule 
of  practice  that  no  advantage  can  be  taken  of  a  defect  or  error  in  the 
form  of  a  judgment  on  appeal  to  the  supreme  court,  unless  the  atten- 

(v)  R.  S.  1881,  §  580.  (a)  Griggs  v.  Voorhies,  7  Blkf.  561. 

(w)  R.   S.   1881,   §   589;    Dowell   v.  (b)  Goodwin  v.  Smith,  68  Ind.  301. 

Richardson,  10   Ind.  573;    Hughes   v.  (c)  Palmer  v.  Glover,  73  Ind.  529; 

Osborn,  42  Ind.  450.  P.,  C.  &  St.  L.  R.  W.  Co.  v.  The  Town 

(x)  Thalman  v.  Barbour,  5  Ind.  178.  of   Elwood,  79   Ind.  306;    Dufour    v. 

(y)  Malaby  v.  Hinkston,  4  Blkf.  127  ;  Kious,  91  Ind.  409. 

Culley  v.  Laybrook,  8  Ind.  285.  (d)  P.,  C.  &  St.  L.  R.  W.  Co.  v.  The 

(z)  Smith  v.  Chandler,  13  Ind.  513.  Town  of  Elwood,  79  Ind.  306. 


072  JUDGMENT.  [CHAP. 

tion  of  the  lower  court  has  been  called  thereto  by  the  proper  objection 
or  motion,  and  an  exception  has  been  reserved.6 

There  are  numerous  decisions  on  this  same  point,  in  addition  to  those 
cited  in  the  foot-note.  They  §eem  to  be  entirely  disregarded  in  a  great 
majority  of  the  cases  appealed,  and  a  very  great  number  of  the  cases 
where  objections  have  been  made  to  the  form  of  the  judgment  were 
lost  by  reason  of  the  failure  to  present  the  question  to  the  court  below 
by  a  proper  motion.  When  it  is  said  that  the  form  of  a  judgment  can 
not  be  corrected  in  the  supreme  court,  it  is  not  mere  clerical  or  formal 
defects  that  are  included,  but  matters  of  substance.  The  rule  is  that, 
if  any  part  of  the  judgment  is  valid  under  the  issues,  the  judgment* 
will  not  be  reversed  in  the  supreme  court,  although  relief  is  given  or 
refused  thereby  that  would  have  been  erroneous  if  the  proper  motion 
had  been  made  in  the  court  below. f 

If  the  question  is  raised  before  the  judgment  is  entered,  it  should 
be  done  by  an  objection  to  the  rendition  of  the  judgment  proposed. 
If  after  it  is  entered,  it  should  be  by  a  motion  to  modify  the  judg- 
ment. And  in  either  case,  an  exception  must  be  taken  at  the  time 
and  reserved  by  a  bill  of  exceptions.8 

The  rule  applies  to  judgments  by  default.11 

The  objection  to  the  judgment  should  be  particularly  pointed  out.' 

The  form  of  a  judgment  can  not  be  challenged  by  a  motion  in  ar- 
rest. Such  a  motion  must  precede,  and  its  object  is  to  prevent,  the 
rendition  of  any  judgment.-* 

A  motion  for  a  new  trial  is  not  necessary.  The  proper  exception 
being  taken,  and  a  bill  of  exceptions  filed,  the  question  is  presented  by 
an  assignment  of  error  in  the  supreme  court. b 

In  the  superior  court,  the  proper  motion  or  objection  must  be  made 
at  special  term.1 

(e)  Gray   v.   Gwinn,   30   Ind.   409 ;  74  Ind.  575 ;    Floore  v.  Steiglemayer, 

Johnson   v.   Unversaw,  30   Ind.   435;  76  Ind.  479. 

Kissinger  v.  Hanselman,  33   Ind.  80;  (f)  Harden  v.  Walpole,  38  Ind.  146; 

O'Brien    v.   Peterman,   34    Ind.   556;  Wilkerson  v.  Rust,  57  Ind.  172. 

Pierce  v.  "Wilson,  48  Ind.  298;  McCor-  (g)  Martin  v.  Martin,  74  Ind.  207; 

mick  v.  Spencer,  53  Ind.  550 ;  Leonard  Douglass  v.  The  State,  72  Ind.  385. 

v.    Blair,   59    Ind.   510;    Brownlee   v.  (h)  Barnes  v.  Wright,  39  Ind.  293; 

Hare,  64  Ind.  311 ;  Forgey  v.  The  First  Barnes  v.  Conner,  39  Ind.  294. 

National  Bank  of  Cambridge  City,  66  (i)  Sanxay  v.  Hunger,  42  Ind.  44. 

Ind.  123;  Ludlow  v.  "Walker,  67  Ind.  (j)  Douglass  v.  The  State,  72  Ind. 

353  ;  Bayless  v.  Glenn,  72  Ind.  5 ;  Teal  385 ;  Smith  v.  Dodds,  35  Ind.  452. 

v.  Spangler,   72   Ind.  380;    Martin   v.  (k)  Hancock  v.  Heaton,  53  Ind.  111. 

Martin,  74  Ind.  207 ;  Smith  v.  Kyler,  (1)  Huffman    v.   The    Indiana    Na- 
tional Bank,  51  Ind.  394. 


XXII.]  JUDGMENT.  673 

1031.  Correcting  judgments. -'-Where  there  is  any  mistake  or 
error  in  entering  judgment,  the  same  may  be  corrected  by  the  proper 
motion  for  that  purpose.     If  made  at  the  same  term,  no  notice  is  nec- 
essary.    If  after  the  term,  notice  must  be  given."1 

What  amendments  of  a  judgment  will  be  allowed,  and  the  practice 
with  reference  thereto,  have  been  considered." 

1032.  How  judgment  entered  and  signed. — "The  judgment 
must  be  entered  on  the  order  book,  and  specify  clearly  the  relief  granted 
or  other  determination  of  the  action."0 

The  proceedings  of  the  court  must  be  read  and  signed  in«open  court.1 
It  is  not  necessary  that  the  judgment  in  each  case  shall  be  signed 
separately,  but  this  may  properly  be  done.p 

In  considering  the  question  of  the  effect  of  a  failure  to  enter  and 
sign  the  judgment,  the  distinction  between  the  act  of  the  clerk,  which 
is  ministerial,  and  the  judicial  act  of  the  court  in  rendering  judgment, 
should  be  kept  in  mind.q 

The  judgment  is  not  rendered  void  by  the  failure  of  the  clerk  to  en- 
ter it.  But  the  statute  requires  that,  before  the  judgment  can  be  en- 
forced by  execution,  it  must  be  entered  and  signed.  This  need  not  be 
done  on  the  day  the  judgment  is  announced.  It  may  be  done  at  a 
later  day  in  the  same  term,  or  at  a  subsequent  term/ 

But  whether  the  entry  of  the  judgment  is  made  on  the  same  or  a 
subsequent  day,  it  must  be  read  in  open  court  and  signed  by  the  judge 
before  execution  can  properly  issue  thereon. 

Where  the  judgment  is  entered  at  a  subsequent  term,  it  should  be 
upon  a  proper  application  and  notice  to  the  opposite  party,  and  it  must 
appear  that  a  judgment  was  actually  rendered.8 

EFFECT   OF  JUDGMENT. 

1033.  Merges  the  cause  of  action. — By  the  rendition  of  judg- 
ment, the  original  cause  of  action  is  merged  therein  and  extinguished 

(m)  Kindig  v.  March,  15  Ind.  248;  (o)  R.  S.  1881,  §  579. 

Hebel  v.  Scott,  36  Ind.  226;  Sherman  (p)  R.  S.  1881,  §  1330;  Galbraith  v. 

v.  Nixon,  37  Ind.  153;  Colman  v.  Wat-  Sidener,  28  Ind.  142;  Jones' v.  Carna- 

son,  54  Ind.  65;    Boles  v.   Brown,  57  ban,  63  Ind.  229;   Kent  v.  Fullenlove, 

Ind.  282;    Latta   v.   Griffith,    57   Ind.  38  Ind.  522. 

329;   Hughes  v.  Hinds,    60    Ind.   93;  (q)  Freeman    on   Judgments,   \  38; 

Reily  v.  Burton,  71  Ind.  118;  Smith  v.  Kent  v.  Fullenlove,  38  Ind.  522. 

The   State,  71    Ind.   250;    Hannah   v.  (r)  Kent  v.  Fullenlove,  38  Ind.  522. 

Dorrell.  73  Ind.  465.  (s)  Passwater   c.  Edwards,  44   Ind. 

(n)   Ante,  vol.  I.,  §  714  et  seq.;  Con-  343. 

way  v.  Day,  79  Ind.  31 8.  (1)  Mitchell  v.  St.  John,  98  Ind.  598; 


674  JUDGMENT.  [CHAP. 

thereby.  The  judgment  itself  becomes  a  debt  of  record  that  takes  the 
place  of  the  original  cause  of  action.'  It  may  be  sued  upon  like  any 
other  debt,  and  in  like  manner  it  is  merged  in  the  second  judgment. 
It  is  extinguished  for  all  purposes.  The  lien  created  by  the  first  judg- 
ment is  destroyed  by  the  recovery  of  the  second." 

The  revivor  of  a  judgment  does  not  merge  the  original. T 

In  Stockwell  v.  Walker,  it  was  held  in  general  terms  that,  by  a 
judgment  in  an  action  upon  a  judgment,  the  one  sued  upon  was  not 
merged,  but  the  two  remained  in  force.  But  the  question  was  not  be- 
fore the  court,  and  the  contrary  doctrine  is  clearly  decided  in  Gould  v. 
Hay  den.  • 

In  an  action  on  a  promissory  note,  and  to  foreclose  a  mortgage  given 
as  security  therefor,  the  cause  of  action  on  the  note  is  not  merged  by 
a  foreclosure  of  the  mortgage.  There  must  be  a  personal  judgment  on 
the  note.w 

A  personal  judgment  on  notes  secured  by  a  mortgage  does  not  waive 
the  mortgage  lien.  But  if  the  premises  are  taken  on  execution  under 
the  judgment,  it  is  otherwise.1 

The  judgment  of  foreclosure  does  not  extinguish  the  lien  of  the  mort- 
gage, but  preserves  and  continues  it  in  force.7 

The  foreclosure  of  a  school  fund  mortgage  extinguishes  the  mort- 
gage, aud  takes  away  the  right  of  the  county  auditor  to  sell  the  real 
estate  thereon.2 

A  judgment  against  one  joint  obligor  merges  the  cause  of  action  as 
to  all,  except  where  one  of  the  obligors  being  made  a  party  has  not 
been  served  with  process,  and  proper  steps  have  been  taken  under  the 
statute  to  preserve  the  plaintiff's  rights  as  to  him.8 

There  are  exceptions  to  this  rule:  1.  Where  one  of  two  joint  debtors 
has  died,  a  judgment  against  the  survivor  does  not  bar  proceedings 

(t)  Ault   v.  Zehering,  38   Ind.  429;  (x)  Applegate  v.  Mason,  13  Ind.  75. 

Cissna  v.  Haines,  18  Ind.  496;  Rawley  (y)  Teal  v.  Henchman,  69  Ind.  379; 

v.  Hooker,  21  Ind.  144;  Gould  v.  Hay-  The  Evansville  Gas  Light  Co.  v.  The 

den,  63  Ind.  443;  Crosby  v.  Jeroloman,  State,    73    Ind.    219;    Manns    v.   The 

37  Ind.  264;  Buchanan  v.  The  Logans-  Brookville  Nat.  Bank,  73  Ind.  243. 

port,   etc.,    R.    W.   Co., -71    Ind.   265;  (z)  Ferris  v.  Cravens,  65  Ind.  262. 

Ward  v.  Haggard,  75  Ind.  381.  (a)   Ante,   vol.   I.,   g§  443,  444,  445, 

(u)  Gould  v.  Hayden,  63  Ind.  443;  447;  Archer   v.   Heiman,  21    Ind.  29; 

Freeman  on  Judg.,  \\  215,  216,  388.  Barnett  v.  Juday,  38  Ind.  86;   Root  v. 

(v)  Stockwell  v.  Walker,  3  Ind.  215;  Dill,  38  Ind.  169;  Holman  v.  Langtree, 

Armstrong    v.   McLaughlin,   49    Ind.  40  Ind.  349;   Lingenfelser  v.  Simon,  49 

370;  Gould  v.  Hayden,  63  Ind.  443.  Ind.  82;   Odell   v.  Carpenter,  71  Ind 

(w)  Lipperd  v.   Edwards,    39    Ind.  4o3;  Cox  v.  Maddux,  72  Ind.  206;  Rob- 

165;  Marshall  v.  Stewart,  65  Ind.  243.  inson  v.  Snyder,  74  Ind.  110. 


xxn.]  JUDGMENT.  £75 

against  the  estate  of  the  other. b  2.  Where  such  makers  are  not  resi- 
dents of  the  same  state,  or  are  not  all  within  the  reach  of  the  process 
of  any  court  in  which  the  suit  could  be  brought.0 

It  was  formerly  held  that  the  allowance  of  a  claim  against  the  estate 
of  one  joint  debtor  was  sufficient  to  release  the  other. d  But  the  pres- 
ent statute  for  the  settlement  of  decedents'  estates  provides  that  an  ex- 
ecutor or  administrator  can  not  be  sued  jointly  with  another,  and  that 
all  contracts  executed  jointly  by  the  decedent  with  another,  and  every 
joint  judgment  thereon,  shall  be  deemed  joint  and  several,  and  the 
amount  due  thereon  shall  be  allowed  against  the  estate  of  the  decedent 
as  if  the  contract  were  joint  and  several.6 

The  provisions  of  this  statute  change  the  former  rule,  and  a  judg- 
ment against  either  the  estate  of  the  deceased  debtor  or  the  survivor 
must  be  treated  as  one  upon  a  joint  and  several  liability,  and  can  not 
merge  the  cause  of  action  as  to  the  other.  An  action  upon  a  judgment 
is  included  in  the  statute. 

1034.  The  lien. — "All  final  judgments  in  the  supreme  and  circuit 
courts  for  the  recovery  of  money  or  costs  shall  be  a  lien  upon  real  es- 
tate and  chattels  real,  liable  to  execution  in  the  county  where  judgment 
is  rendered,  for  the  space  of  ten  years  after  the  rendition  thereof  and 
no  longer,  exclusive  of  the  time  during  which  the  party  may  be  re- 
strained from  proceeding  thereon  by  any  appeal  or  injunction,  or  by 
the  death  of  the  defendant,  or  by  agreement  of  the  parties  entered  of 
record." f 

"The  following  real  estate  shall  be  liable  to  all  judgments  and  at- 
tachments, and  to  be  sold  on  execution  against  the  debtor  owning  the 
same,  or  for  whose  use  the  same  is  holden,  viz.: 

"First.  All  lands  of  the  judgment  debtor,  whether  in  possession,  re- 
mainder, or  reversion. 

"Second.  Lands  fraudulently  conveyed,  with  intent  to  delay  or  de- 
fraud creditors. 

"Third.  All  rights  of  redeeming  mortgaged  lands;  also,  all  lands 
held  by  virtue  of  any  land  office  certificate. 

"Fvurth.  Lands,  or  any  estate  or  interest  therein,  holden  by  any  one 
in  trust  for  or  to  the  use  of  another. 

"Fifth.  All  chattels  real  of  the  judgment  debtor."* 

(b)  Devol  v.  Halstead,  16  Ind.  287;  (e)  R.  S.  1881,  $  2311,  2312;  ante 
Cox  v.  Maddux,  72  Ind.  206.  vol.  1.,  §  124. 

(c)  Cox  v.  Maddux,  72  Ind.  206.  (f)  R.  S.   1881,  \  608;    Kinney  «. 

(d)  Greathouse   v.  Kline,   MS.   case  Dodge,  101  Ind.  673. 
No.  8820,  April  19,  1882.  ^g)  R.  S,  1881,  §  752. 


676  JUDGMENT.  [CHAP. 

A  judgment  of  the  Circuit  Court  of  the  United  States  is  a  lien  upon 
the  real  estate  of  the  debtor  throughout  the  state.h 

So  of  a  judgment  of  the  supreme  court  of  the' state.' 
\Ajudgmeut  lien  does  not  attach  to  real  estate  held  by  a  title  bond.J 

An  equitable  title  is  not  subject  to  a  judgment  lien.k 

Nor  is  real  estate  conveyed  to  one  person,  to  be  by  him  conveyed  to 
another  immediately,  affected  by  judgments  standing  against  him.  He 
takes  simply  as  a  trustee,  and  no  lien  attaches.1 

The  lien  of  a  judgment  is  subject  to  the  lien  of  an  unrecorded  mort- 
gage executed  prior  to  its  rendition.1" 

Where  real  estate  has  been  sold  but  not  conveyed,  the  lien  of  a  judg- 
ment against  the  vendor  reaches  the  land,  but  the  vendee  may  be  re- 
lieved in  equity  to  the  extent  of  any  purchase-money  paid  by  him  be- 
fore the  lien  attached." 

The  lien  of  a  judgment  upon  the  real  estate  of  a  corporation  is  not 
lost  by  the  subsequent  appointment  of  a  receiver  therefor.0 

When  a  personal  judgment  is  rendered  in  a  foreclosure  proceeding, 
and  an  order  is  made  that,  after  the  sale  of  the  mortgaged  property, 
the  residue  of  the  amount  be  levied  of  other  property  of  the  defend- 
ant, the  personal  judgment  is  a  general  lien  on  all  of  the  real  estate 
of  the  defendant  in  the  county,  and  a  specific  lien  upon  the  land  mort- 
gaged. P 

The  equity  of  redemption  of  a  defendant  in  real  estate  is  subject  to 
the  lien  of  a  judgment^ 

The  judgment  is  not  a  lien  on  real  estate  in  another  county/ 

A  judgment  of  the  circuit  court  is  not  a  lien  upon  personal  property. 
To  bind  personal  property  an  execution  must  issue.8 

Priority. — As  a  rule,  the  lien  of  a  judgment  attaches  at  the  date  of 
its  rendition,  and  is  subject  to  all  existing  liens  or  rights  of  third 

(h)  Simpson   v.  Niles,  1    Ind.    196;  Gaar  v.  Lockridge,  9  Ind.  92;  Jackson 

Jenners  v.  Doe,  9  Ind.  461.  v.  Snell,  34  Ind.  241 ;  Simpson  v.  Niles, 

(i)  Simpson  v.  Niles,  1  Ind.  196.  1  Ind.  196. 

(j)  Modisett?  Johnson,  2  Blkf.  431;  (o)  The  Southern  Bank  of  Ken- 
Doe  v.  Cutshall,  1  Ind.  246.  tucky  v.  The  Ohio  Insurance  Co.,  22 

(k)  Terrell  v.   Prestel,  68  Ind.  86;  Ind.  181. 

Russel  v.  Houston,  5  Ind.  180.  (p)  Fletcher  v.  Holmes,  25  Ind.  458. 

(1)  Cox  v.  Arnsmann,  76  Ind.  210.  (q)  Julian  v.  Beal,  26  Ind.  220. 

(m)  Sparks   v.   The   State   Bank,   7  (r)  Baker  v.  Chandler,  51  Ind.  85. 

Blkf.  469.  (s)  Richardson    v.  Seybold,  76   Ind. 

(n)  Vance  v.  Workman,  8  Blkf.  306 ;  58. 
Holman   ».  Creagmiles,  14   Ind.   177; 


JUDGMENT.  677 

parties,  whether  legal  or  equitable,  and  the  question  whether  the  judg- 
ment plaintiff  had  notice  of  such  liens  is  immaterial.' 

It  is  otherwise  as  to  the  purchaser  of  a  judgment  or  of  the  real  es- 
tate on  execution  issued  thereon.  In  such  case,  where  the  existing 
lieu  is  equitable  merely,  notice  must  be  shown,  or  the  purchaser  will 
take  the  land  free  from  the  lien." 

Judgments  are  liens  upon  real  estate  in  the  order  of  time  of  their 
rendition.7 

A  mortgage  given  for  purchase-money  has  preference  over  a  prior 
judgment  against  the  purchaser. w 

It  is  held  that  a  judgment  lien  is  divested  by  the  condemnation  of 
the  real  estate  for  street  purposes.1 

A  guardian's  sale  of  real  estate  does  not  divest  the  lien  of  a  judgment 
against  the  ward.y 

Nor  does  a  proceeding  for  partition  and  sale  thereunder  affect  the 
lien  of  a  judgment  against  one  of  the  owners;  but  the  judgment 
plaintiff  may  be  made  a  party  to  the  action,  and  the  lieu  transferred 
to  the  part  owner's  share  of  the  purchase-money.2 

An  assignment  for  the  benefit  of  creditors  does  not  affect  existing 
judgment  liens. a 

Where  real  estate  has  been  sold  on  execution  for  only  a  part  of  the 
amount  of  the  judgment  upon  which  it  was  sold,  and  it  has  been  re- 
deemed by  the  owner  or  some  other  person  entitled  to  redeem,  it  be- 
comes again  liable  to  the  existing  liens  as  if  no  sale  had  been  made, 
and  may  be  sold  for  the  balance  of  the  judgment  upon  which  it  was 
sold  in  the  first  instance. b 

The  widow  of  a  judgment  defendant,  who  married   him  after  the 

(t)  Manns  v.  The   Brookville  PSJjC~    (w)  R.  S.  1881,  §1089;   Houston  v. 

Bank,    73   Ind.  243 ;   The    Mo»ti§bno  Houston,  67  Ind.  276. 

Hydraulic  Go.  v.  Loughry,  7$£nd.  562;  (x)  Gimbel  v.  Stolte,  59  Ind.  446. 

Armstrong  v.  Fearnaw,  67  Ind.  429;  (y)  Shaffner    v.     Briggs,    36     Ind. 

Wain wright  v.  Flanders,  64  Ind.  306;  55. 

Wharton  v.  Wilson,  60  Ind.  591;  Peet  (•/.)  Wood  v.  Winings,  58  Ind.  322; 

v.  Beers,  4  Ind.  46;  Albridge  v.  Dunn,  Fouty  v.  Morrison,  73  Ind.  333;  ante, 

7    Blkf.   249;    2  Pomeroy's  Eq.   Jus.,  vol.  I.,  §  159. 

§  721;    Foltz  v.  Wert,  103  Ind.  404;  (a)  New  v.  Reissner,   56  Ind.   118; 

Heberd  r.  Wines,  105  Ind.  237.  Forkner  v.  Shafer,  56  Ind.  120. 

(u)  Tuttle   v.  Churchman,    74    Ind.  (b)  Goddard  v.  Renner,  57  Ind.  532; 

311  ;  Wain  wright  v.  Flanders,  64  Ind.  Cauthorn  v.  The  Indianapolis,  etc.,  R 

306 ;  2  Pomeroy's  Eq.  Jur.,  g  724:  R.  Co.,  58  Ind.  14. 

(v)  Whitney  r.  llightclaim,  6  Blkf. 
322;  Steele  v.  Hanna,  8  Blkf.  326; 
Swope  v.  Ardery,  5  Ind.  213;  State  v. 
Cisnev,  5)5  Ind.  '265. 


678  JUDGMENT.  [CHAP. 

lien  attached,  can  claim  no  interest  in  his  real  estate  as  against  the 
judgment  so  long  as  the  lien  continues.'1 

Where  a  judgment  defendant  acquires  real  estate  subsequently,  all 
judgment  liens  then  existing  attach  at  once,  and  their  priority  depends 
upon  the  date  of  issuing  execution  thereon. d 

Judgments  on  bonds  payable  to  the  State  of  Indiana  bind  the 
real  estate  of  the  debtor  from  the  commencement  of  the  action.6 

This  section  applies  to  the  sureties  on  the  bond.f 

A  recognizance  binds  the  real  estate  of  the  principal  from  the  time 
it  is  taken,  and  that  of  the  surety  from  the  judgment  of  forfeiture^ 

How  long  lien  continues. — The  lien  of  a  judgment  upon  real  estate, 
as  a  general  rule,  continues  for  ten  years  from  the  rendition  thereof, 
and  no  longer.  But  there  are  four  exceptions,  the  statute  excluding 
from  the  computation  of  time : 

1.  The  time  during  which  the  party  is  restrained  by  an  appeal  from 
proceeding. 

2.  The  time  during  which  the  plaintiff  is  restrained  by  an  injunction. 

3.  The  time  the  plaintiff  may  be  prevented  from  proceeding  by  the 
death  of  the  defendant. 

4.  The  time  the  plaintiff  may  be  prevented  from  enforcing  the 
judgment  by  an  agreement  of  the  parties  entered  of  record. h 

When  collection  is  restrained  by  agreement  of  the  parties,  it  must 
be  for  a  certain  and  definite  time,  or  the  lien  will  not  be  extended  be- 
yond the  time  fixed  by  the  statute.' 

The  lien  of  a  decree  of  foreclosure  continues  for  twenty  years  from 
its  date.* 

1035.  Judgment  docket ;  notice  of  lien. — The  statute  requires 
that  a  judgment  docket  shall  be  kept  by  the  clerk,  in  which  he  shall 
enter,  within  thirty  days  after  each  term  of  the  court,  in  alphabetical 
order,  a  statement  of  each  judgment  rendered  at  such  term,  contain- 
ing: 

First.  The  names  at  length  of  all  the  parties. 

(c)  Armstrong   v.    McLaughlin,   49     Francis,  30  Ind.  92;    Ball   v.  Barnett, 
Ind.  370;  Bobbins  v.  Bobbins,  8  Blkf.     39  Ind.  53. 

174.  (h)  R.  S.  1881,  §608;  Applegate  v. 

(d)  O'Harra  v.  Stone,  48  Ind.  417;     Edwards,  45  Ind.  329;  Castle  v.  Fuller, 
Michaels  v.  Boyd,  1  Ind.  259.  17   Ind.  402;    Kinney  v.  Dodge,  101 

(e)  U.S.  1881,  §  609;    Ball   v.  Bar-     Ind.  573. 

nett,  39  Ind.  53.  (i)  Ristine  v.  Early,  21  Ind.  103. 

(f )  Shane  v.  Francis,  30  Ind.  92.  (a)  The  Evansville  Gas  Li«;ht  Co.  r. 

(g)  R.    S.    1881,   §   1220;    Shane   r.    The  State,  73  Ind.  219. 


XX I  f.]  JUDGMENT.  679 

Second.  The  amount  of  the  judgment  and  costs  and  date  of  its  ren- 
dition. 

Third.  If  the  judgment  be  against  several  persons,  the  statement 
shall  be  repeated  under  the  name  of  each  defendant,  in  alphabetical 
order. 

Recognizances  of  bail  for  stay  of  execution  shall  be  entered  in  such 
docket  immediately  after  the  taking  or  return  thereof,  specifying  the 
judgment  and  its  amount,  the  date  of  the  recognizance,  and  names  of 
the  bailJ 

The  record  is  required  to  be  kept  open  during  the  usual  hours  for 
transacting  business. k 

And  the  clerk  is  made  liable  to  the  party  injured  for  a  failure  to  en- 
ter any  judgment  or  recognizance  as  required  by  the  statute.1 

The  judgment  docket  is  not  necessary  to  constitute  the  lien,  but  it 
is  necessary  to  constitute  sufficient  notice  thereof  to  third  parties.  A 
subsequent  purchaser  or  incumbrancer  for  a  valuable  consideration  is 
only  bound  to  look  to  the  judgment  docket  for  judgment  liens,  and  if 
any  judgment  has  not  been  entered  therein,  in  the  absence  of  actual 
notice,  he  takes  the  land  discharged  from  the  lien,  and  the  only  remedy 
of  the  judgment  plaintiff,  if  there  is  no  other  property,  is  against  the 
clerk  under  section  585. m 

The  cases  cited  from  this  state  relate  to  transcripts  of  judgments  filed 
in  another  county  ;  but  there  can  be  no  difference  in  principle,  as  be- 
tween the  judgment  plaintiff  and  third  parties,  between  the  original 
judgment  and  the  transcript. 

The  transcripts  are  required  to  be  "  recorded."  This  must  mean  in 
the  order  book.  It  must  also  be  "  entered  in  the  judgment  docket." 
This  is  precisely  what  must  be  done  in  the  county  where  the  judgment 
is  rendered.  If  the  simple  recording  is  sufficient  notice  in  one  county, 
it  should  be  in  the  other.  To  hold  that  the  judgment  as  recorded  in 
the  order  book  is  sufficient  notice  to  third  parties,  would  be  to  render 
the  entry  in  the  judgment  docket  a  mere  form,  answering  no  valid 
purpose  whatever,  and  the  section  of  the  statute  making  the  clerk  li- 
able in  damages  to  the  party  injured  would  be  entirely  nugatory,  as 
no  one  could  be  injured,  in  contemplation  of  law,  by  a  failure  to  enter 
the  judgment.  The  judgment  plaintiff  has  the  right  to  see  that  his 
judgment  is  properly  entered.  The  purchaser  has  no  such  power. 
Therefore,  the  judgment  plaintiff  should  be  regarded  as  the  party  in 

(j)  K.  S.  1881,  §583.  man  on   Judg.,  §343;    Berry  v.  Reed, 

(k)  R.  S.  1881,  §  584.  73  Ind.  235;  The  State  v.   Record,  80 

(1)  R.  S.  1881,  §  585.  Ind.  348;  post,  §  1036. 
(m)  Bell  v.  Davis,  75  Ind.  314;  Free- 


680  JUDGMENT.  [CHAP. 

jured  by  the  negligence  of  the  clerk,  and  should  be  left  to  his  action 
for  damages  under  the  statute." 

During  the  thirty  days  allowed  the  clerk  in  which  to  enter  the  judg- 
ment in  the  judgment  docket,  the  purchaser  must  look  to  the  order 
book.0 

1036.  Transcript  to  bind  real  estate. — The  lien  of  a  judgment 
rendered  in  one  county  may  be  extended  to  the  real  estate  of  the  de- 
fendant in  another  county  by  filing  a  transcript  thereof  in  the  clerk's 
office  of  such  county,  and  having  the  same  recorded  in  the  order  book 
of  the  circuit  court  and  entered  in  the  judgment  docket. p 

The  transcript  filed,  as  provided  by  this  section,  becomes  a  lien  from 
the  time  the  same  is  recorded  in  the  order  book  and  entered  in  the 
judgment  docket.  The  statute  provides  that  it  shall  become  a  lien 
"  from  the  time  of  filing  the  copy  aforesaid."  q 

But  it  is  held  by  the  supreme  court  that  it  is  not  enough  that  it  be 
Sled.  It  must  be  recorded  and  entered  in  the  judgment  docket/ 

Some  of  the  earlier  cases  held  that  the  transcript  was  a  lien  from  the 
time  of  filing.8 

But  the  rule  is  clearly  established  the  other  way  by  the  later  de- 
cisions. The  recording  and  entering  of  the  transcript  is  not  only 
necessary  as  notice  to  third  parties,  but  the  statute  must  be  complied 
with  in  order  to  constitute  a  lien.1 

When  the  statute  has  been  complied  with  the  lien  of  the  judgment 
is  the  same  as  if  the  transcript  were  an  original  judgment  rendered  in 
the  county  where  it  is  filed,  recorded,  and  entered.u(l) 

The  statute  applies  to  judgments  of  the  superior  court. v 

1037.  Transcripts  of  justices  of  the  peace. — The  statute  re- 
quires that  justices  of  the  peace  shall  make  out  and  transmit  transcripts 
of  judgments  rendered  by  them,  and  provides  that  they  shall  be  forth- 
with recorded  in  the  order  book,  and  docketed  in  the  judgment  docket, 
by  the  clerk  of  the  circuit  court.     It  is  also  provided  that  the  transcript 
shall  be  a  lien  upon  the  real  property  of  the  defendant  within  the 

(n)  Berry  v.  Reed,  73  Ind.  235.  (s)  Julian  v   Deal.  !>«  ItWL  1220;  Ball 

(o)  Berry  v.  Reed,  73  Ind.  235.  «•  »•»*&  39  Ind;  ™;  .,-,,. 

}'  R  a'™    ,  fiin  (t)  Bell  v.  Davis,  /o  Ind.  314. 

(p)  R.  S.  UI8I,  §   ilO.  (u)   R  s   1881   g  611 

(q)  R.  S.  1881,  §  611.  (1)   But   the    execution    must    issue 

(r)  Berry  «.  Reed,  73  Ind.  235;  The  from  the  court  in  whirli  judgment  was 

State  v.  Record,  80  Ind.  348;   Bell  ,.  ™de™o|  2  fj",'^    *'   C°X'   9?    lnd', 

Davis,  75  Ind.  314;  ante,  g  1035.  ^   £jn  ;/Dav^  7.5  Ind   314. 


XXH.]  JUDGMENT.  681 

county,  to  the  same  extent  as  judgments  of  the  court,  from  the  time 
of  filing  the  transcript." 

It  will  be  noticed  that  the  transcript  is  declared  to  be  a  lien  from  the 
time  of  filing  the  same.  And  the  supreme  court  has  held  that  it  is  a 
lien  from  the  time  of  its  filing.1 

It  was  held,  in  the  same  case,  that  transcripts  from  the  circuit  court 
were  liens  from  the  time  of  filing.  As  we  have  seen,  the  later  cases 
hold  that  the  transcript  of  the  circuit  court  is  not  a  lien  until  recorded 
and  entered. y 

The  reason  for  holding  that  the  filing  of  a  transcript  from  the  cir- 
cuit court  does  not  constitute  a  lien  applies  with  equal  force  to  tran- 
scripts from  justices  of  the  peace.  In  each  case  it  is  required,  not  only 
that  the  transcript  shall  be  filed,  but  that  it  shall  be  recorded  in  the 
order  book,  and  docketed  in  the  judgment  docket.  Notwithstanding  the 
section  provides  that  the  transcript  shall  be  a  lien  from  the  time  it  is 
filed,  if  the  construction  given  sections  610  and  611  is  right  the  same 
construction  must  be  given  to  sections  612  and  613,  and  the  transcript 
must  be  recorded  and  entered  before  the  lien  can  attach.2 

1038.  When  conclusive  ;  collateral  attack. — The  general  rule 
is  that  judgments  not  void  are  conclusive  against  parties  to  the  action, 
their  heirs,  and  privies.  It  is  also  a  well-established  rule  that  a  judg- 
ment, no  matter  how  erroneous  it  may  be,  can  not  be  attacked  or 
controverted  in  a  collateral  proceeding,  by  the  parties  thereto,  nor  by 
strangers,  except  for  fraud.8 

The  rule  applies  to  judgments  rendered  in  another  state.b 

Where  the  judgment  is  void  on  the  ground  that  the  court  had  not 

(w)  R.  S.  1881,  §§  612,  613.  George,   49    Ind.   309;    Davenport   v. 

(x)  Ball  v.  Burnett,  39  Ind.  53,  56.        Barnett,  51  Ind.  329;   Britton  t>.  The 

(/)    Berry  lulled,  73  Ind.  235 ;  Bell  State>  54  Ind"  535'  Pressler  »•  T«rn<*, 

r.  Davis,  75  Ind.  314;  ante,?  1036.  See  57  Ind.  56;  Goar  v.  Maranda,  67  Ind. 

also  American  IMS  Co.  v.  Gibson,  104  339;  Williams  v.  Nesbitt,  65  Ind.  171; 

Ind.  336;  Dufour  v  Kiou*.  91  Ind.  409.  Osborn  „.  storms,  65  Ind.  321;  Avers 

(a)   Cornwell  v.  Hungate,  1  Ind.  Io6;         TT      ,  „ ,  T    ,   ,,„.,     m,      n       , 

Ziengenhager  v.  Doe,  f  ]nd.  296;  Doe  *•  Harshman,  6b  Ind.  291 ;  The  Board 

v.  Smith,  1  Ind.  451;  Billing  v.  Mur-  of  Comm'rs,  etc.,  v.  Hall,  70  Ind.  469; 

ray,  6  Ind.  324;  Applegate  v.  Mason,  The  State  v.  Benson,  70  Ind.  481 ;  Faris 

13  Ind.  75;  Cassell   c.  Scott,  17   Ind.  v.    Reynolds,    70   Ind.    359;    Jones  v. 

514;    Evans  v.   Ashby,   22    Ind.    15;  Levi,  72  Ind.  586;  Walker  v.  Heller, 

Waltz  v.  Borroway,  25  Ind.  380;   De-  73  Ind.  46;  Palmer  v.  Glover,  73  Ind. 

quindrc  v.  Williams,  31  Ind.  444;  Nut-  529;   Fee  v.  Moore,  74  Ind.  319;  Earl 

zen holster  v.  The  State,  37  Ind.  457;  v.  Matheny,  60  Ind.  202;  Davidson  v. 

Gavin  v.  Graydon,  41   Ind.  559;  Bates  Kohler,  76   Ind.  398;    Hume   v.  Con- 

v.  Spooner,  45  Ind.  48D;  Nicholson  v.  duitt,  76  Ind.  598. 
Stephens,    47    Ind.   185;    Landers    v.         (b)  Anderson  v.  Fry,  6  Ind.  76. 


682  JUDGMENT.  [CHAP. 

jurisdiction  of  the  subject-matter  or  of  the  person  of  the  defendant,  it 
is  not  a  judgment,  and  may  be  attacked  collaterally.0 

Where  the  judgment  is  in  rem,  jurisdiction  of  the  person  need  not 
appear. d 

When  the  jurisdiction  of  an  inferior  court  depends  upon  a  fact  which 
such  court  is  required  to  ascertain  and  settle  by  its  decision,  such  deci- 
sion is  conclusive,  except  in  a  direct  proceeding  to  reverse  or  set  aside 
the  judgment.6  Its  judgment  can  not  be  questioned  collaterally  on 
account  of  errors  or  irregularities  which  do  not  affect  the  jurisdiction.* 

When  the  record  discloses  nothing  on  the  point,  jurisdiction  of  the 
person  or  the  subject-matter  will  be  presumed,  in  aid  of  the  judgment 
of  a  court  of  general  jurisdiction/ 

Where  there  is  an  appearance  by  attorney,  the  authority  of  the  at- 
torney to  appear  in  the  action  can  not  be  controverted  in  a  collateral 
proceeding,  except  upon  the  ground  of  fraud.8 

It  was  held  in  some  of  the  early  cases  that  the  judgment  debtor 
might  show,  to  avoid  the  effect  of  the  judgment,  that  the  attorney  had 
no  authority  to  appear  for  him.h  But  the  later  decided  cases  are  the 
other  way. 

A  personal  judgment  against  a  married  woman  can  not  be  attacked 
collaterally  on  the  ground  of  coverture.' 

The  remedy  for  a  judgment  obtained  by  fraud  was,  under  the  old 
practice,  by  a  bill  in  chancery.-1 

A  stranger  to  the  judgment,  who  is  injuriously  affected  thereby,  may 
show,  in  a  collateral  proceeding,  that  it  was  obtained  by  fraud. k 

But  the  fraud  that  will  authorize  a  third  party,  for  example,  another 

(c)  Ante,  vol.  I.,  §  905;    Horner  v.  Hawkins    v.    Hawkins,    28    IncL    66; 
Doe,  1  Ind.  130;  Allen  v.  Chadsey,   1  Hays   v.  Ford,  55   Ind.  52;    Ayers   v. 
Ind.  39S>,    Packard  v.  Mendenhall,  42  Harshman,  66  Ind.  291;    Dwiggins  v. 
Ind.  598;  ante,  vol.  I.,  \  207.  Cook,  71  Ind.  579;  lies  v.  Watson,  76 

(d)  Wiley  v.   Pavey,   61   Ind.  457;  Ind.  359;  Crane  v.  Kimmer,  77  Ind. 
Davidson  v.  Kohler,  76  Ind.  398.  215. 

(e)  The  State  v.  Needham,  32  Ind.  (g)  Ante,  vol.  I.,  §  227;    Wiley  v. 
825;   Hornaday  v.  The  State,  43   Ind.  Pratt,  23  Ind.  628;  The  Floyd  County 
30;    Faris   v.  Reynolds,  70   Ind.   359;  Ag.  Association   v.   Tomkin,    23    Ind. 
The  Board  of  Comm'rs  of   Lawrence  348;  Bush  v.  Bush,  46  Ind.  70. 

Co.  v.  Hall,  70  Ind.  469;  Hume  v.  Con-  (h)  Sherrard  v.  Nevins,  2  Ind,  241 ; 

duitt,  76  Ind.  598;   ante,  vol.  I.,  §  5;  Boylan  v.  Whitney,  3  Ind.  140. 

Featherston  v.  Small,  77  Ind.  143;  The  (i)  Wagner  v.  Ewing,  44  Ind.  441. 

State  v.  Wenzel,  77  Ind.  428.  (  j)  Button  v.  Denton,  2  Ind.  644. 

(a)  Featherston   v.   Small,    77    Ind.  (k)  Freeman  on  Judg.,  §§335,336; 

143.  DeArmond  v.  Adams,  25  Ind.  455;  Lee 

(f)  Horner    v.    Doe,    1     Ind.    130;  v.    Back,    30   Ind.  148;    The   State   v. 
Waltz    v.    Borroway,    25     Ind.   380;  Holmes,  69  Ind.  577. 


XXII.]  JUDGMENT.  683 

creditor  of  the  judgment  defendant,  to  attack  the  judgment,  must  af- 
fect both  parties  to  the  judgment  and  amount  to  collusion.  It  is  not 
enough  to  show  that  the  judgment  plaintiff  has  overreached  the  cred- 
itor and  obtained  an  unjust  advantage  over  other  creditors.1 

A  party  to  the  action  can  not  set  aside  the  judgment  on  the  ground 
of  fraud  in  the  original  cause  of  action.  This  should  be  set  up  at  the 
trial.  The  fraud  that  will  entitle  a  party  to  the  action  to  relief  must 
be  the  fraud  of  the  opposite  party  in  obtaining  the  judgment,  and  not  in 
obtaining  the  cause  of  action  or  defense.'" 

A  party  to  the  judgment  can  not  impeach  it  collaterally,  for  fraud. 
He  must  either  appeal  or  bring  a  direct  action  to  set  it  aside." 

In  either  case,  the  fraud  must  be  in  obtaining  the  judgment,  and 
not  the  cause  of  action  upon  which  it  is  founded.0 

The  record  of  a  justice  of  the  peace  is  conclusive  evidence  of  the 
facts  stated  therein,  and  can  not  be  contradicted  by  a  pleading.  P 

It  has  been  held  that  a  discharge  in  bankruptcy  can  not  be  attacked 
collaterally  for  irregularity  or  fraud  practiced  in  the  proceedings  in 
which  it  was  obtained.*1 

The  rule  that  forbids  a  collateral  attack  applies  to  interlocutory  or- 
ders.11 

A  personal  judgment  for  a  debt  not  yet  due  is  erroneous,  but  not 
void.  Not  being  void,  it  follows  that  it  is  not  subject  to  collateral  at- 
tack.8 

1039.  Effect  of  appeal  from  judgment. — The  binding  effect 
of  a  judgment  is  not  affected  by  an  appeal  therefrom.  If  not  void,  it 
is  conclusive  upon  the  parties  until  actually  reversed.  Execution  may 
be  stayed  during  the  pendency  of  an  appeal,  the  necessary  bond  being 
given,  but  the  judgment  is  none  the  less  effective  as  having  settled  the 
controversy  between  the  parties,  and  may  be  used  as  evidence  and 
pleaded  as  res  adjudicata,  the  same  as  if  no  appeal  had  been  taken.1 

(1)  Wells'  Res  Adjudicata,  150,  151 ;  (p)  Larr  v.  The  State,  45  Ind.  364. 

Lewis  v.  Rogers,  16  Pa.  St.  18;  McAl-  (q)  Wiley  v.  Pavey,  61  Ind.  457. 

pine  v.  Sweetser,  76  Ind.  78.  (r)  Parsons  v.  Milford,  67  Ind.  489: 

(m)  The  State  v.  Holmes,  69   Ind.  Candy  v.  Hanmore,  76  Ind.  125. 

577,  589.  (s)  Gall  v.  Fryberger,  75  Ind.  98. 

(n)  Freeman  on  Judg.,  §  334.  (t)  Burton  v.  Burton,  28   Ind.  342; 

(o)  Hunter  v.  The  Burnsville  Turn-  Nill  v.  Comparet,  16  Ind.  107;  Heffren 

pike  Co.,  56  Ind.  213;  Markle  v.  The  v.  Jayne,  39  Ind.  463. 
Board,  etc.,  of  Clay  County,  55  Ind. 
185. 


684  JUDGMENT.  [CHAP. 


REPLEVIN   BAIL. 

1040.  The  statute. — "Sec.  690.  When  judgment  has  been  ren- 
dered against  any  person  for  the  recovery  of  money  or  sale  of  prop- 
erty, he  may,  by  procuring  one  or  more  freehold  sureties  to  enter  into 
a  recognizance,  acknowledging  themselves  bail  for  the  defendant  for 
the  payment  of  the  judgment,  together  with  the  interest  and  costs  ac- 
crued and  to  accrue,  have  a  stay  of  execution  from  the  time  of  signing 
the  judgment,  as  follows : 

"First.  If  the  sum  for  which  the  judgment  was  rendered,  inclusive 
of  costs,  do  not  exceed  six  dollars,  for  thirty  days. 

"Second.  If  such  sum  and  costs  exceed  six,  and  do  not  exceed  twelve 
dollars,  sixty  days. 

"Third.  If  such  sum  and  costs  exceed  twelve,  and  do  not  exceed 
twenty  dollars,  ninety  days. 

"Fourth.  If  such  sum  and  costs  exceed  twenty,  and  do  not  exceed 
forty  dollars,  one  hundred  and  twenty  days. 

"Fifth.  If  such  sum  and  costs  exceed  forty,  and  do  not  exceed  one 
hundred  dollars,  one  hundred  and  fifty  days. 

"  Sixth.  If  such  sum  and  costs  exceed  one  hundred  dollars,  one  hun- 
dred and  eighty  days."  u 

"Sec.  691.  The  bail  for  stay  of  execution  may  be  taken  and  ap- 
proved by  the  clerk,  and  the  recognizance  entered  of  record  at  anytime 
before  the  term  of  the  stay  of  execution  expires.  The  undertaking  in 
the  recognizance  shall  be  for  the  payment  of  the  judgment,  interest, 
and  costs  that  may  accrue  at  or  before  the  expiration  of  the  term  of 
the  stay  of  execution.  The  recognizance  shall  be  written  immediately 
following  the  entry  of  the  judgment  and  signed  by  the  bail."  v 

1041.  Is  a  judgment  confessed. — "Every  recognizance  of  bail 
taken  as  above  provided  shall  have  the  effect  of  a  judgment  confessed 
from  the  date  thereof  against  the  person  and  property  of  the  bail."  w 

In  order  to  be  binding  for  any  purpose,  the  replevin  bail  must  be  en- 
tered before  the  expiration  of  the  length  of  stay  allowed  by  the  statute; 
therefore  the  entry  thereof  after  the  time  can  not  have  the  effect  of  a 
valid  judgment,  but  is  wholly  void.* 

So  where  the  judgment  is  not  repleviable.y 

(u)  R.  S.  1881,  §  690.  (x)  Osborn  v.  May.  5  Ind.  217;  Tay. 

(v)  R.  S.  1881,  §  691.  lor  v.  Sanford,  8  Blkf.  169;   EHzroth  ». 

(w)  R.  S.  1881,  §  697;    Hutchins  v.  Voris,  74  Ind.  459. 

Hanna,    8    Ind.    533;    The  Vincennes  (y)  Egbert  r.  The  State,  4  Ind.  399; 

Nat.  Bank  p.  Cockrum,  64  Ind.  229.  Taylor  r.  Resell,  75  Ind.  386. 


XXII.]  .JUDGMENT.  685 

1042.  "What   judgments    repleviable. — All  judgments   upon 
which  execution  may  issue  are  repleviable,  unless  otherwise  provided  by 
statute.1 

No  execution  can  issue  on  a  judgment  against  an  estate,  in  an  action 
against  an  executor  or  administrator,  and  there  can  be  no  stay  of  exe- 
cution by  entering  replevin  bail.8 

A  judgment  of  foreclosure  may  be  replevied.b 

And  where  there  is  no  personal  judgment,  and  the  mortgaged  prop- 
erty has  been  sold,  the  clerk  may  issue  execution  for  the  balance  of 
the  judgment  against  the  replevin  bail.c 

It  is  provided  by  statute  that  judgments  recovered  against  any 
sheriff,  constable,  or  other  public  officer,  administrator,  executor, 
or  any  person  or  corporation,  or  the  sureties  of  any  or  either  of  them, 
for  money  collected  or  received  in  a  fiduciary  capacity,  or  for  a  breach 
of  any  official  duty,  or  for  money  or  other  article  of  value  held  in  trust 
for  another,  shall  be  collectible  without  stay  of  execution.*1 

This  statute  has  been  held  to  apply  to  suits  on  guardians'  bonds.6 

When  the  judgment  is  not  repleviable  it  should  be  so  ordered  therein, 
and  entered  on  the  execution. f 

1043.  How  entered. — The  right  to  enter  replevin  bail  is  controlled 
entirely  by  statute.8 

The  entry  must,  therefore,  be  in  conformity  to  the  statute.  But  we 
have  a  curative  statute,  which  provides  :  "  No  official  bond  entered  into 
by  any  officer,  nor  any  bond,  recognizance,  or  written  undertaking 
taken  by  any  officer  in  discharge  of  the  duties  of  his  office,  shall  be 
void  for  want  of  form,  or  substance,  or  recital,  or  condition,  nor 
the  principal  or  surety  be  discharged ;  but  the  principal  and  surety 
shall  be  bound  by  such  bond,  recognizance,  or  written  undertaking,  to 
the  full  extent  contemplated  by  the  law  requiring  the  same,  and  the 
sureties  to  the  amount  specified  in  the  bond  or  recognizance.  In  all 
actions  on  a  defective  bond,  recognizance,  or  written  undertaking,  the 
plaintiff  or  relator  may  suggest  the  defect  in  his  complaint,  and  recover 
to  the  same  extent  as  if  such  bond,  recognizance,  or  written  undertak- 
ing were  perfect  in  all  respects."  h 

(z)  Develin   v.  Wood,   2   Ind.  102;         (d)  R.  S.  1881,  $  577,  699. 
McLane  v.  Elmer,  4  Ind.  239.  (e)  Bescher   v.   The   State,   63  Ind. 

(a)  Egberts.  The  State,  4  Ind.  399;     302,  321. 

Taylor  v.  Russell,  75  Ind.  386.  (f  j  R.  S.  1881,  ?  699. 

(b)  Nilesfl.  Stillwagon,  22  Ind.  143;  (g)  The    Vincennes    Nat.    Bank    i>. 
Ensley  v.  McCorkle,  74  Ind.  240.  Cockrum,  64  Ind.  229. 

(c)  Ensley  t>.  McCorkle,  74  Ind.  240.  (h)   R.  S.  1881,  §  1221. 


68G  JUDGMENT.  [CHAP. 

The  statute  is  very  broad  in  its  terras  and  applies  to  recognizances 
of  replevin  bail.' 

The  effect  of  this  statute  is  thus  stated  in  Hawes  v.  Pritchard  :  ' '  The 
effect  of  these  provisions  of  section  790  of  the  code  (1221  of  new  code), 
upon  informal  or  defective  bonds,  recognizances,  or  written  undertak- 
ings, taken  by  an  officer  in  discharge  of  the  duties  of  his  office  has  of 
late  been  the  subject  of  full  consideration  by  this  court  in  a  number  of 
cases ;  and  it  has  been  uniformly  held,  as  we  now  hold,  that  the  effect 
of  these  statutory  provisions  is  to  legalize  and  validate  the  bond,  re- 
cognizance, or  written  undertaking  in  question,  and  make  of  it  just  such 
an  instrument  as  was  contemplated  and  called  for  by  the  terms  of  the  statute 
under  which  it  appeared  to  have  been  executed"* 

It  was  held,  in  some  of  the  earlier  cases,  that  where  the  statute  re- 
quired that  the  recognizance  of  replevin  bail  should  be  attested  by  the 
justice,  of  the  peace,  the  attestation  was  necessary  to  its  validity.k 

The  effect  of  section  1221  upon  defective  recognizances  was  not  con- 
sidered in  these  cases.  In  later  cases  it  is  held  that  the  section  is  ap- 
plicable to  and  cures  the  defect  where  it  consists  of  a  failure  to  attest 
the  entry  of  recognizance  by  the  justice,  and  the  earlier  cases  are  ex- 
pressly overruled.1 

To  constitute  a  valid  recognizance  of  replevin  bail  before  a  justice 
of  the  peace  it  must  be  entered  on  the  docket.™ 

It  is  not  sufficient,  under  this  statute,  that  the  recognizance  be  writ- 
ten and  properly  executed,  on  a  separate  piece  of  paper,  though  it  is 
attached  to  the  docket.  It  must  be  "  entered  on  the  docket"  or  it  is 
void.11 

To  enter  the  recognizance  on  the  back  of  the  execution  issued  on  the 
judgment  of  a  justice  of  the  peace  is  not  sufficient.0 

The  provision  with  reference  to  the  entry  in  the  circuit  court  is  that 
it "  shall  be  written  immediately  following  the  entry  of  the  judgment."  P 

(i)  Hawes  v.  Pritchard,  71  Ind.  166;  (k)  Hougland  v.  The  State,  43  Ind. 

The  Vincennes  Nat.  Bank  v.Cockrum,  537;  Fentriss  v.  The  State,  44  Ind.  271. 

64  Ind.  229;    Miller  v.  McAlister,  59  (1)  Miller  v.  McAlister,  59  Ind.  491 ; 

Ind.  491.  Etzroth  v.  Voris,  74   Ind.    459;    The 

(j)  Hawes  v.  Pritchard,  71  Ind.  166,  State  v.  Trout.  75  Ind.  563.  . 

170;   Railsback  v.  Greve,  58  Ind.  72;  (m)  R.  S.  1881,  \  1520. 

Fuller  v.  Wright,  59  Ind.  333;   Miller  (n)  McCormick   v.  Cassell,  16  Ind. 

v.  McAlister,  69  Ind.  491;   Yeakle  v.  408;  Lockwood  v.  Dills,  74  Ind.  56. 

Winters,  60  Ind.  654;  Turner  v.  The  (o)  McCormick   v.  Cassell,  16   Ind. 

State,   66   Ind.   210;    Graham   v.  The  408. 

State,  66  Ind.  386 ;  The  State  v.  Wyant,  (p)  K.  S.  1881,  §  691. 
67  Ind.  25. 


XXII.]  JUDGMENT.  687 

It  is  held  that,  notwithstanding  this  provision,  the  recognizance  need 
uot  follow  immediately  after  the  judgment.*1 

Where  the  bail  is  entered  after  the  execution  issues  it  may  be  taken 
by  the  sheriff  and  indorsed  on  the  execution/ 

The  entry  need  not  appear  to  have  been  approved  by  the  clerk." 

Can  not  stay  part  of  a  judgment. — "  The  undertaking  in  the  recogni- 
zance shall  be  for  the  payment  of  the  judgment,  interest,  and  costs 
that  may  accrue  at  or  before  the  expiration  of  the  term  of  the  stay  of 
execution."' 

It  is  held,  under  this  clause  of  the  statute,  that  the  recognizance 
must  be  for  the  whole  judgment  and  can  not  be  for  a  part." 

While  these  cases  agree  in  holding  that  there  can  be  no  recognizance 
for  less  than  the  whole  of  the  judgment,  interest,  and  costs,  they  do 
not  agree  as  to  the  effect  of  an  attempt  to  enter  replevin  bail  for  a 
part.  In  one  it  is  held  that  the  effect  of  section  1221  is  to  make  such 
a  recognizance  binding  "  to  the  full  extent  contemplated  by  the  law  re- 
quiring the  same."T 

The  effect  of  the  decision  was  to  extend  the  liability  of  the  replevin 
bail  beyond  his  express  contract,  and  beyond  his  intention  and  make 
a  new  and  different  contract  not  contemplated  by  him.  This  was  cer- 
tainly carrying  the  effect  of  a  statute,  evidently  intended  to  cure 
defects  in  form,  to  an  extreme  that  could  not  be  sustained. 

In  the  later  case  of  Sterne  v.  McKinney  it  is  held  that  recognizance 
bail  entered  for  half  of  a  judgment,  where  the  judgment  was  against 
two  defendants,  was  absolutely  void.  There  was  an  attempt  to  secure 
the  whole  judgment  "  by  halves,"  a  part  of  the  recognizers  having 
become  replevin  bail  for  one  of  the  defendants,  and  a  part  for  the  other, 
in  the  following  form:  "We  acknowledge  ourselves  replevin  bail  for 
the  payment  of  Jacob  W.  Hargrove's  one-half  of  the  judgment  upon 
which  the  within  execution  has  issued,  together  with  the  interest  and 
costs  accrued  and  to  accrue  thereon,  at  or  before  the  expiration  of  the 
time  allowed  by  law  for  the  stay  of  execution  6n  such  judgment." 

The  supreme  court  say,  after  quoting  the  statute  authorizing  the  entry 
of  replevin  bail:  "  In  the  absence  of  the  above  provisions  of  the  stat- 
ute a  judgment  could  not  be  stayed  by  putting  in  bail.  The  judgment 
debtor  who  seeks  the  benefit  of  the  statute  must  comply,  substantially, 
with  its  provisions.  He  can  not,  by  procuring  bail  for  a  part  of  a 

(q;  Williams  v.  Beisel,  3  Ind.  118.  Cockrum,  64  Ind    229;   Sterner.  Mc- 

(r)  R.  S.  1881,  §  694.  Kinney,  79  Ind.  578;  The  Vincennes 

(s)  Ensleyv.  McCorkle,  74  Ind.  240.  Nat.  Bank  v.  Cockrum,  80  Ind.  355. 

(t)  R.  S.  1881,  §691.  (v)  The   Yincennes   Nat.    Bank    v. 

(11)  The   Vincennes    Nat.    Bank    »\  Cockrum,  64  Ind.  229. 


688  JUDGMENT.  [CHAP. 

judgment  against  him,  obtain  a  stay  of  execution.  The  undertaking 
of  the  recognizance  must,  by  the  express  terms  of  the  statute,  be  for  the 
payment  of  the  whole  judgment.  He  can  not  obtain  a  stay  upon  one- 
half  of  the  judgment  by  putting  in  bail  for  its  payment,  nor  can  be 
stay  the  whole  judgment  '  by  halves.'  If  the  recognizances  iu  this 
case  are  valid  each  must  be  considered '  good  without  reference  to  the 
other.  They  are  in  no  way  connected  ;  each  is  distinct  from  and  inde- 
pendent of  the  other,  and  the  validity  of  neither  depends  upon  the 
existence  or  validity  of  the  other.  .  .  .  It  is  insisted  that  section 
790  of  the  code  (section  1221  new  code)  applies  to  recognizances  of 
replevin  bail,  and  this  has  been  too  often  held  to  be  now  questioned. 
It  is  insisted  that  this  section  so  changes  these  recognizances  that  they 
secure  the  whole  and  not  a  part  of  the  judgment.  That  though  the 
recognizers  expressly  stipulated  to  pay  a  part  only  of  the  judgment, 
yet,  by  force  of  this  section,  they  must  be  held  to  have  undertaken 
to  pay  the  whole  judgment.  'And  this  is  held  to  be  the  law  in  the 
case  of  The  Vincennes  National  Bank  v.  Cockrum.  This  effect  shoud  not 
be  given  to  the  statute  unless  its  language  plainly  and  clearly  required 
it.  ...  If  this  section  applies  to  these  recognizances,  then,  by  its 
express  terms,  the  recognizers,  being  sureties,  can  not  be  levied  to  a 
greater  amount  than  that  specified  in  the  recognizance,  to  wit,  one- 
half  of  the  judgment.  But  as  there  is  no  law  authorizing  the  stay 
of  execution  upon  a  recognizance  to  secure  the  payment  of  one-half  of 
a  judgment  it  follows  that,  as  statutory  recognizances,  they  are  invalid."  w 
This  ruling  has  been  followed  by  later  cases  not  yet  reported. 

The  statute  authorizes  the  replevin  bail  to  have  'execution  on  the 
judgment  before  the  stay  expires,  by  filing  an  affidavit  that  he  verily 
believes  he  will  be  liable  for  the  judgment,  interest  and  costs  unless 
execution  issues  immediately.1 

Execution,  thus  issued,  may  be  stayed  for  the  balance  of  the  time 
yet  to  run,  as  in  other  cases.7 

1044.  Where  part  of  judgment  defendants  are  sureties. — 
Where  the  judgment  is  rendered  against  t\vo  or  more  persons,  any  of 
whom  are  sureties,  the  sureties  may  object,  at  the  time  the  judgment  is 
rendered,  to  replevin  bail  being  entered,  and  it  shall  be  so  ordered  by 
the  court,  unless  the  bail  for  the  stay  of  execution  will  undertake, 
specially,  to  pay  the  judgment  in  case  the  amount  thereof  can  not  be 
levied  of  the  principal  defendant/ 

(w)  Stern  v.  McKinney.  79  lad,  578,         (y)  R.  S.  1881,  §  702. 
*583.  fz)  R.  S.  1881,  §  700;    Hogshead  v. 

(x)  R.  S.  1881,  I  701.  Williairs,  55  Ind.  146. 


XXII.]  JUDGMENT.  689 

An  objection  by  the  sureties  does  not  prevent  the  principal  from 
staying  the  execution  of  the  judgment;  but  when  objection  is  made 
the  recognizance  must  be  in  a  different  form.  The  replevin  bail  must 
bind  himself  to  pay  the  judgment  if  not  made  out  of  the  property  of 
the  principal,  thus  making  himself  liable  before  the  sureties  in  the 
judgment  can  be  compelled  to  pay.  When  the  recognizance  is  given 
in  this  form,  execution  must  be  levied  of  the  property  of  the  principal 
first,  then  of  the  property  of  the  replevin  bail,  and  lastly  upon  that  of 

the  surety. 

ARREST   OF  JUDGMENT. 

1045.  For  \vhat  causes  judgment  may  be  arrested. — "A 
motion  in  arrest  of  judgment  reaches  any  defect  in  the  pleadings  not 
cured  by  the  verdict,  or  the  statute  of  amendments,  or  waived  by  fail- 
ure to  demur."3 

What  defects  are  waived  by  a  failure  to  demur,  and  those  cured  by 
verdict,  or  by  the  statutes  of  amendments,  has  been  fully  considered.11 

That  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  is  not  waived,  and  is  cause  for  a  motion  in  arrest.6 

'  So  of  the  objection  that  the  court  has  not  jurisdiction  of  the  subject- 
matter  of  the  action. d 

It  is  only  defects  in  the  plaintiff's  pleadings  that  can  be  cause  for  a 
motion  in  arrest.6 

But  when  there  is  a  counterclaim,  and  a  finding  against  the  plaintiff 
thereon,  judgment  may  be  arrested  on  his  motion/  As  to  the  issue  on 
the  counterclaim  the  defendant  becomes  a  plaintiff. 

When  the  motion  is  intended  to  apply  to  the  counterclaim,  it  should 
be  so  stated  in  the  motion.6 

And  if  the  judgment  is  to  be  rendered  on  two  separate  counter- 
claims, the  motion  must  be  confined  to  the  one  that  is  bad.  If  it  goes 
to  the  judgment  generally,  and  one  of  the  counterclaims  is  good,  the 
motion  will  be  overruled.11 

(a)  Buskirk's  Prac.  264;    Adamson     dens  v.  Younglove,  46  Ind.  212 ;  New- 
v.  Rose,  30  Ind.  380;  Waiigb  r.Waugh,     man  v.  Pen-ill,  73  Ind.  153. 

47  Ind.  580;  Rawles  v.  The  State,  56  (d)  Reams  v.  The  State,  23  Ind.  Ill; 

Ind.  433.  Loeb  v.  Mathis,  37  Ind.  306. 

(b)  Ante,   vol.   I.,  $  519,  520,  521,  (e)  Iglehart's   Trac.  &  PI.,  pp.  '2->\ 
§32  to  536,  and  727,  and  authorities  259. 

cited;    Felger  v.  Ktzell,  75   Ind.  417;  (f)  Brownlee  v.  Hare,  64  Ind.  311. 

Bowling  v.  Crapo,  6-3  Ind.  209.  (g)  Carriger  v.  Sicks,  73  Ind.  7ti. 

(c)  McMillen  v.  Terrell,  23  Ind.  163;  (h)  Jones  v.  Pothast,  72  Ind.  158. 
Livesey  v.  Livesey,  30  Ind.  398  ;  Hid- 

44 


690  JUDGMENT.  [CHAP. 

Where  there  is  a  trial  upon  objections  or  exceptions  to  an  adminis- 
trator's or  executor's  report,  such  administrator  or  executor  is  the 
plaintiff  in  the  action,  and  there  can  be  no  motion  in  arrest  by  him.1 

Where  there  is  an  affirmative  judgment  in  the  defendant's  favor,  on 
an  answer  of  set-off,  the  judgment  may  be  arrested  if  the  whole  an- 
swer is  bad,  but  not  if  there  is  one  good  paragraph  authorizing  such 
affirmative  relief. j 

Defects  in  an  affidavit  for  replevin  can  not  be  reached  by  a  motion  in 
arrest  of  judgment.15 

A  defect  must  appear  upon  the  face  of  the  record  to  be  cause  for  a 
motion  in  arrest.1 

The  want  of  an  allegation  in  the  complaint  that  would  be  cause  for 
arresting  the  judgment,  may  be  supplied  by  the  answer.™ 

A  defect  in  the  form  of  a  judgment  is  not  cause  for  a  motion  in  ar- 
rest." 

Under  the  code  of  1852,  the  fact  that  the  action  was  brought  in  the 
wrong  county  was  cause  for  a  motion  in  arrest.0 

But  it  is  expressly  provided  in  the  present  statute  that  the  objection 
is  waived  if  not  taken  by  demurrer  or  answer. p 

1046.  Goes  to  the  whole  complaint. — A  motion  in  arrest  does 
not  reach  a  defect  in  a  single  paragraph  of  a  complaint,  where  there  is 
one  or  more  good  paragraphs.     The  whole  complaint  must  be  bad  or 
the  motion  can  not  prevail. q 

1047.  The  motion. — The  motion  need  not  be  in  writing,  or  point 
out  the  ground  upon  which  it  is  based/ 

But  to  be  available  on  appeal,  the  record  must  show  that  the  mo- 
tion was  made,  and  an  exception  taken.8 

The  court  may  arrest  the  judgment  on  the  ground  of  want  of  juris- 
diction without  a  motion.  The  objection  should  prevail  on  such 
ground,  if  made  at  any  stage  of  the  cause.' 

(i)  Brownlec  v.  Hare,  64  Ind.  311.  (q)  Waugh  v.  Waugh,  47  Ind.  580; 

(j)  Harris  v.  Rivers,  53  Ind.  216.  Clarkson    v.   McCarty,    5    Blkf.   574; 

(k)  Davis  r.  Warfield,  38  Ind.  461.  Newell  v.  Downs,  8  Blkf.  523;   Kelsey 

(1)  Rawles  v.  the  State,  56  Ind.  433.  v.  Henry,  48  Ind.  37;  Spahr  v.  Nick- 

(m)  Sherrod  v.  Shirley,  57  Ind.  13;  laus,  51  Ind.  221;  Harris  v.  Rivers,  53 

Wiles  v.  Lambert,  66  Ind.  494.  Ind.  216;   The  Toledo,  etc.,  R.  W.  Col 

(n)  Smith    p.   Dodds,    35   Ind.  452;  r.  Milligan,  52  Ind.  505. 

ante,  §  1030.  (r)  Fall  v.  Hazelrig,  45  Ind.  576. 

(o)  Loeb  v.  Mathis,  37  Ind.  306.  (s)  Vandever  v.  Garshmiller.  63  Ind. 

(p)  R.  S.  1881,  §  343;  ante,  vol.  I.,  \  18"). 

477.  (t)  Reams  r.  The  State,  23  Ind.  11L 


XXII.]  JUDGMENT.  691 

The  motion  in  arrest  must  be  made  before  judgment  is  rendered." 
And  after  a  motion  for  a  new  trial. v 

1048.  Effect  of  arresting  judgment. — If  the  motion  in  arrest 
is  sustained,  the  present  action  is  at  an  end.     There  can  be  no  judg- 
ment for  either  party,  but  each  must  pay  his  own  costs  and  the  plaint- 
iff may  bring  his  action  again. w 

There  can  be  no  amended  complaint  filed.  The  action  must  be 
brought  de  now.1 

REVIEW   OF  JUDGMENT.(l) 

1049.  Causes  for  review. — There  are  but  two  causes  for  review: 
First.  Error  of  law  appearing  in  the  proceedings  and  judgment. 
Second.  Material  new  matter  discovered  since  the  rendition  of  the 

judgment^ 

New  matter,  as  here  used,  means  new  matter  of  fact  material  to  the 
case,  not  new  matter  of  law  enacted  since  the  trial. z 

Nor  is  it  sufficient  that  new  evidence  has  been  discovered.  The  new 
matter  must  consist  of  a  newly  discovered  fact  or  facts,  and  not  mere 
evidence  of  a  fact  already  known. a 

Newly-discovered  evidence  is  cause  fora  new  trial  and  not  for  review.1* 
There  can  be  no  review  for  error  in  matter  of  form  nor  for  matter  of 
abatement.0 

An  action  to  review  will  not  lie  in  ex  parte  proceedings.*1 
It  is  said,  in  the  syllabus  to  one  case,  that  a  judgment  may  be  re- 
viewed on  the  ground  that  it  was  obtained  by  fraud,  but  the  case  does 
not  so  decide,6  and  clearly  such  is  not  the  law.  The  new  matter  con- 
templated by  the  statute  must  mean  some  fact  or  facts  going  to  make 
up  the  original  cause  of  action  or  defense,  and  not  some  act  of  fraud 
by  which  the  judgment  was  obtained.  If  the  fraud  goes  to  constitute 
the  cause  of  action,  it  is  a  fact  that  may  amount  to  new  matter  within 

(a)  Hilligoss  v.  The  Pittsburg,  etc.,  son  v.  Johnson,  18  Ind.  329;  Fleming 

R.  R.   Co.,  40  Ind.  112;    Brownlee  v,  v.   Stout,    19    Ind.   "328;    Webster    v. 

Hare,  64  Ind.  311.  Maiden,  41  Ind.  124;  Barnes  v.  Dewey, 

(v)  Ante,  vol.  I.,  §  933,  and  authori-  58  Ind.  418;  Tate  v.  Fletcher,  77  Ind. 

ties  cited.  102. 

(w)  Raber  v.  Jones,  40  Ind.  436.  (b)  Hall  t-.  Palmer,  18  Ind.  5;   R.  S. 

(x)  Crawford  v.  Crockett,  55  Ind.  220.  1881,  §  559 ;  ante,  vol.  I.,  §§  866,  918,  et 

(1)  Forms  of  complaint  for,  Vol.  3,  seq. 

p.  183.  (c)  Fleming  v.  Stout,  19  Ind.  328. 

(y)   R.   S.   1881,  §  616;    Harvey   v.  (d)  Davidson    v.    Lindsay,    16  Ind. 

Davis,  46  Ind. 598;  Vol.3,  pp.  183-186.  186;     Williams    v.  Williams,  18    Ind. 

(z)  Worley  v.  The  Town  of  Elletts-  345. 

ville,  60  Ind.  7.  (e)  The  State  c.  Hi.lmes,  69  Ind  577. 

(a)  Hall  v.  Palmer,  18  Ind.  5;  Nel- 


692  JUDGMENT.  [CHAP. 

the  statute.  But  where  the  fraud  is  in  obtaining  the  judgment,  while 
it  may  be  ground  for  setting  it  aside/  it  is  not  ground  for  review.  It  is 
supposed,  however,  in  an  early  case,  that  it  is  ground  for  review,  s 

But  the  question  was  not  before  the  court,  and  the  case,  on  this 
point  is  disapproved  in  a  later  decision.11 

That  a  judgment  has  been  taken  without  defaulting  the  defendant 
is  not  ground  for  review.' 

It  is  cause  for  review  that  judgment  was  rendered,  by  default,  on  the 
first  day  of  the  term.J 

Where  the  action  is  for  error  of  law,  it  must  be  such  an  error  as 
would  be  cause  for  reversal  in  the  supreme  court. k 

A  personal  judgment  against  a  married  woman,  rendered  against 
her  on  default,  may  be  reviewed  where  the  fact  of  her  coverture  appears 
on  the  face  of  the  complaint.1 

That  the  judgment  is  made  to  draw  too  great  a  rate  of  interest  is 
cause  for  review."1 

1050.  The  parties. — The  statute  provides  that  "  Any  person  who 
is  a  party  to  any  judgment,  or  the  heirs,  devisees,  or  personal  repre- 
sentatives of  a  deceased  party  may  file,  in  the  court  where  such  judg- 
ment is  rendered,  a  complaint  for  a  review  of  the  proceedings  and 
judgment."  " 

All  the  parties  to  the  judgment  must  be  parties  to  the  action  to  re- 
view.0 

Parties  to  the  action,  where  there  is  no  judgment  for  or  against 
them,  need  not  be  joined  in  a  proceeding  to  review. 

Persons  not  parties  to  the  judgment,  nor  their  heirs,  devisees,  per- 
sonal representatives,  or  persons  otherwise  in  privity,  can  not  maintain 
an  action  to  re  view. p 

1051.  The  pleadings ;  complaint  for  error  of  law. — In  an 
action  to  review  for  error  of  law  appearing  in  the  proceedings  and 
judgment,  the  complaint  must  set  out  so  much  of  the  record  as  would 

(f )  Post,  §  1057.  (1)  Emmett  v.  Yandes,  60  Ind.  548; 

(g)  Quick  v.  Goodwin,  19  Ind.  438.        Hinsey  v.  Feeley,  62  Ind.  85. 

(h)  Keals  v.  Dicks,  72  Ind.  374;  (m)  Davidson  v.  King,  49  Ind.  338. 

post,  §1057.  (n)  K.  S.  1881,  §  615;  Webster  v. 

(i)  Doherty  v.  Chase,  64  Ind.  73.  Maiden,  41  Ind.  124. 

fj)  Mitchell  v.  McCorkle,  69  Ind.  (o)  Sloan  v.  Whiteman,  6  Ind.  434; 

184.  Douglay  v.  Davis,  45  Ind.  493. 

(k)  Rice  v.  Turner,  72  Ind.  559;  (p)  Cassell  r.  Case,  14  Ind.  393; 

"Richardson  v.  Howk,  45  Ind.  451.  Owen  v.  Cooper,  46  Ind.  -VJ1. 


XXII.  ]  JUDGMENT.  C93 

be  necessary  to  present  the  same  question  on  appeal  to  the  supreme 
court. q 

It  has  been  held,  in  a  number  of  cases,  that  the  complaint  must 
contain  a  full  and  complete  record  of  the  proceedings  in  the  former 
action/ 

But  these  cases  are  modified  by  that  of  Stevens  v.  The  City  of  Lo- 
gansport,  supra. 

An  action  to  review  for  error  apparent  is  regarded  as  in  the  nature 
of  an  appeal,  and,  so  far  as  they  are  applicable,  should  be  governed  by 
the  same  rules. 

To  require  a  complete  record  to  accompany  the  complaint,  where  no 
question  is  presented  but  the  sufficiency  of  the  complaint  in  the  origi- 
nal action  would  be  unreasonable,  and  it  is  believed  that  none  of  the 
decided  cases,  in  laying  down  the  broad  rule  that  a  complete  record 
must  be  made  part  of  the  complaint,  were  intended  to  require  more  of 
the  record  to  be  set  out  than  would  be  sufficient  to  present  the  same 
question  on  appeal. 

Where  the  question  of  law  presented  arises  on  any  of  the  pleadings, 
a  record  of  the  pleadings  and  the  final  judgment  thereon  is  all  that  need 
be  set  out,  except  in  cases  of  default,  when  the  summons  and  return 
of  the  sheriff  thereon  should  be  included. 

If  the  question  grows  out  of  the  admission  or  exclusion  of  evidence, 
or  other  error  of  law  occurring  at  the  trial,  a  bill  of  exceptions  must 
have  been  filed  in  time  to  become  a  part  of  the  record,  and  there  must 
have  been  a  motion  for  a  new  trial,  both  of  which  must  be  filed  as  a 
part  of  the  complaint,  together  with  other  proceeding?  in  the  cause." 

But  if  the  proceeding  is  made  part  of  the  record  by  an  order  of 
court,  this  takes  the  place  of  a  bill  of  exceptions  to  that  extent.' 

It  may  be  said,  generally,  that  only  so  much  of  the  record  need  be 
set  out  as  is  material  and  relevant  to  the  errors  relied  upon  as  a  cause 
for  review." 

(q)  Stevens  v.  The  City  of  Logans-  v.  The  Town  of  Ellettsville,  60  Ind.  7 ; 

port,  76  Ind.  498;  Leech  v.  Perry,  77  Cravens    v.   Chambers,    69    Ind.    84; 

Ind.  422;  Funk  v.  Davis,  103  Ind.  281 ;  Hardy  v.  Chipman,  54  Ind.  591 ;  Bur- 

Vol.  3,  p.  183.  ton  v.  Harris,  76  Ind.  429. 

<r)  McDadec.  McDade,  29  Ind.  340;  (s)  Reed  v.  Worland,  64  Ind.  216; 

Kitchr.  The  State,  53  Ind.  59;  Owen  Boyd   v.  Fitch,  71    Ind.  306;    Rice   v 

r.  Cooper,  46  Ind.  524;  Davis  v.  Perry,  Turner,  72  Ind.  659. 

41    Ind.   305;    Weathers  v.   Doerr,  53  (t)  Rice  r.  Turner,  72  Ind.  559. 

Ind.   104;    Goar  v.  Cravens,  57   Ind.  (u)  Stevens  v.  The  City  of  Logans- 

365;    Mitchell   v.  Boyer,  58   Ind.  19;  port,  76  Ind.  498. 
Comer  v.  Himes,  58  Ind.  573 ;  Worley 


694  JUDGMENT.  [CHAP. 

It  must  appear  from  the  complaint  that  an  exception  was  taken,  at 
the  time,  to  the  ruling  of  the  court  that  is  alleged  as  error. T 

This  rule  has  its  exceptions.  The  ground  upon  which  it  is  held  that 
an  exception  must  be  shown  is  that  a  failure  to  except  is  a  waiver  of 
the  error.  The  reason  for  the  rule  d(5es  not  apply  where  the  error  com- 
plained of  is  that  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  failure  to  object  to  the  complaint  below 
is  not  a  waiver  of  the  objection  on  appeal. w 

It  has  been  held,  therefore,  that  where  a  judgment  is  taken  by  default 
the  objection  that  the  complaint  does  not  state  facts  sufficient  may  be 
raised  for  the  first  time  in  an  action  to  review  the  judgment,  or  on  ap- 
peal. * 

The  objection  that  the  court  has  not  jurisdiction  of  the  subject-mat- 
ter is  not  waived  by  a  failure  to  demur  or  answer,  and  may  be  made  in 
an  action  to  review,  without  an  exception  being  shown. y 

So  where  judgment  has  been  taken  by  default,  without  notice  to  the 
defendant,  objection  may  be  presented  on  appeal.2  And  the  same  rule 
applies  to  an  action  to  review.8 

The  record  made  part  of  the  complaint  must  show  the  proper  notice, 
or  the  cause  will  be  reversed. 

But  where  the  defendant  has  been  served  with  process,  and  a  default 
has  been  taken  against  him,  he  can  not  appeal  or  maintain  an  action  to 
review,  which  is  in  the  nature  of  an  appeal,  except  for  causes  not 
waived  by  a  failure  to  except,  without  first  moving  to  set  aside  the  de- 
fault, showing  merits  in  the  defense,  and  reserving  the  proper  excep- 
tions.1' 

It  is  said,  in  some  of  the  cases,  that  the  defendant  can  not  appeal 

(v)  Train   v.  Gridley,   36  Ind.  241  ;  (y)  R.  S.  1881,  §  343;  ante,  vol.  I., 

Richardson    v.   Howk,    45    Ind.    451 ;  §  520,  and   authorities  cited ;    Davis  v. 

Kitch  v.  The  State,  53  Ind.  59;  Goar  Perry,  41  Ind.  305;  Davidson  v.  King, 

v.   Cravens,   57   Ind.   365 ;    Collins  v.  51  Ind.  224. 

Rose,  59  Ind.  33;  Preston  v.  Sandford,  (z)  Cochnower     v.    Cochnower,    27 

21  Ind.  156;  Cravens  v.  Chambers,  69  Ind.  253;  Kyle  v.  Kyle,  55  Ind.  387. 

Ind.  84;    Davidson   v.    King,  51    Ind.  (a)  Berkshire  v.  Young,  45  Ind.  461 ; 

224.  Kyle  v.  Kyle,  55  Ind.  387 ;  Busk.  Prac., 

(w)  Ante,   vol.  I.,  §§  519,   520,   521 ;  p.  270;  Hall  v.  Palmer,  18  Ind.  5. 

R.  S.  1881,  I  343.  (b)  Frasier  v.  Hubble,  13  Ind.  432; 

(x)  Berkshire  v.  Young,  45  Ind.  461 ;  Kirby  v.  Bobbins,  13  Ind.  470;  Gray  v. 

Davis  v.  Perry,  41  Ind.  305;  Davidson  Dickey,  20  Ind.  96;  Skeen  v.  Hunting- 

v.  King,  51  Ind.  224;  Strader  v.  Man-  ton,  25  Ind.  510;   Barnes  v.  Conner,  ?>0 

ville,  33  Ind.  Ill;  Wright  v.  Norris,  Ind.  294;  Reed  v.  Spayde,  56  Ind.  394 
40  Ind.  247. 


XXII.]  JUDGMENT.  695 

until  after  a  motion  to  set  aside  the  judgment  or  proceedings  to  review  it 
in  the  court  below.  The  same  foundation  must  be  laid  to  entitle  a 
party  to  review  for  error  of  law  that  would  be  necessary  to  entitle  him 
to  appeal.  If  an  exception  is  necessary  on  appeal,  it  has  been  held 
uniformly  that  it  is  necessary  in  an  action  to  review.  If  a  party  must 
move  to  set  aside  a  default,  and  reserve  his  exception  before  he  can 
appeal,  he  must  do  the  same  before  he  can  ask  for  a  review  of  the 
judgment  for  error  of  law  appearing  in  the  proceedings  and  judgment. 
The  rule  that  requires  that  he  shall  show  a  meritorious  defense  before 
he  can  have  relief  from  a  default,  would  be  overthrown  by  allowing 
him  to  maintain  an  action  to  review  without  moving  to  set  aside  the 
default.  The  rules  applicable  in  case  of  an  appeal  must  control  in  a 
proceeding  to  review. 

Although  the  proceeding  for  a  review  must  be  brought  in  the  same 
court  in  which  the  original  judgment  was  recovered,  the  court  sits  as 
an  appellate  court ;  and,  where  the  defendant  has  been  properly  served 
with  process,  but  two  questions  can  be  presented,  without  an  excep- 
tion having  been  taken  in  the  original  action:  1.  That  the  court  has 
not  jurisdiction  of  the  subject-matter.  2.  That  the  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.1* 

The  rule  applies  in  case  of  default,  except  as  to  these  two  grounds 
of  review ;  and  3.  That  the  court  had  not  jurisdiction  of  the  person  of 
the  defendant,  which  may  be  presented  without  an  exception.  In  all 
other  cases  the  party  must  first  ask  relief  from  the  judgment,  in  the 
original  action,  and,  if  refused,  reserve  his  exception  before  he  can 
maintain  an  action  to  review. 

Where  the  action  to  review  is  for  new  matter,  the  rule  is  different. 
There  no  exception  is  necessary  and  no  appeal  would  lie.c 

Recitals  in  the  record  are  conclusive  on  the  party  pleading  it,  and 
can  not  be  contradicted,  or  varied,  by  the  allegations  of  the  com- 
plaint.'1 

Errors  may  be  waived  otherwise  than  by  a  failure  to  except.  Thus 
it  is  held  that  when  the  judgment  is  rendered  by  agreement,  errors  in 
the  prior  proceedings,  and  defects  in  the  pleadings,  are  waived.6 

The  complaint  need  not  allege  that  the  action  is  brought  within  the 
time  limited  by  the  statute/ 

(b)  Tachan  v.  Fiedeldey,  81  Ind.  54;     Ind.  451;    but  see  Davidson  v.  King, 
Searle  v.  Whipperman,   79  Ind.   424;     49  Ind.  338. 

Busk.  Prac.,p.270;  Berkshire  v.  Young,  (d)  Weathers  r.  Doerr,  53  Ind.  104; 
45  Ind.  461.  Tho  State  r.  Holmes,  69  Ind.  577. 

(c)  Montgomery    v.    Hamilton,   43         (e)  Collins  r.  Rose,  59  Ind.  33. 

(f )   Doyd  r.  Fitch,  71  Ind.  306. 


69G  JUDGMENT.  [CHAP. 

For  material  neio  matter. — We  have  seen  that  a  review  for  material 
new  matter  can  only  be  had  on  the  ground  that  some  fact,  or  facts, 
material  to  the  cause  of  action  or  defense  have  been  disco vered.u 

The  complaint  must  show,  by  the  proper  allegations,  that  some  ma- 
terial fact  has  been  discovered  since  the  rendition  of  the  judgment. 
It  is  not  sufficient  to  allege  the  discovery  of  new  evidence. v 

The  complaint  must  also  state  the  facts  showing  that  the  plaintiff 
was  ignorant  of  such  new  matter,  and  that  it  could  not  have  been  dis= 
covered  by  the  use  of  reasonable  diligence.  It  is  not  enough  to  allege 
due  diligence  in  general  terms. w 

It  must  also  appear  that  the  complaint  was  filed  without  delay  after 
such  discovery.1 

The  complaint  on  the  ground  of  new  matter  discovered  must  be  ver- 
ified.? 

So  much  of  the  record  as  is  material  to  the  question  presented  by 
the  complaint  must  be  set  out.z 

A  cross-complaint  may  be  filed  in  an  action  to  review.8 

Tlie  answer,- — Whether  an  answer  is  proper  or  not  depends  upon  the 
nature  of  the  grounds  for  review.  If  the  complaint  is  for  error  of 
law  appearing  on  the  face  of  the  proceedings  and  judgment,  the  court 
must  determine  the  question  from  the  record,  and  the  whole  question 
is  presented  by  a  demurrer  to  the  complaint.  No  question  of  fact  can 
arise  and  no  answer  is  proper.b 

But  while  no  question  of  fact  can  arise  as  to  the  original  proceeding, 
if  the  demurrer  to  the  complaint  for  review  is  overruled,  the  defendant 
may  plead,  by  way  of  answer,  a  release  of  errors,  or  any  matter  that 
would  bar  an  appeal.0 

(u)  Ante,  §  1049.  59  Ind.  33;  Alexander  v.  Daugherty, 

(v)  Hall  v.  Palmer,  18  Ind.  5;  Nel-  69  Ind.  388;  Francis  v.  Davis,  69  Ind. 

son  v.  Johnson,  18  Ind.  329 ;  Webster  452. 

r.    Maiden,   41    Ind.   124;    Barnes   v.  (y)  K.   S.   1881,    §  617;    Francis  u. 

Dewey,  58  Ind.  418;  Francis  v.  Davis,  Davis,  69  Ind.  452. 

69  Ind.  452.  (z)  Whitehall  v.  Crawford,  67  Ind. 

(w)  K.   S.   1881,    §   617;    Comer   v.  84. 

Himes,  49  Ind.  482;  Jenkins  t>.  Prewett,  (a)  Harlen  v.  Watson,  63  Ind.  143  ; 

7  Blkf.  329;   Simpkins   v.  Wilson,  11  Tate  ?-.  Fletcher,  77  Ind.  102. 

Ind.  541 ;    Bryant  v.  Haskins,  53  Ind.  (b)  Richardson    r.   Howk.    45   Ind. 

218;  Barnesw.  Dewey,  58  Iml.418;  Alex-  451 ;  MoDade  r.  McDade,  29  Ind.  340; 

anderv.  Daugherty,  69  Ind.  388;  Gregg  Story's  Eq.  PI  ,  §§  404,  407;   Brewer  v. 

•o.    Louden,   51    Ind.   585;    Francis   r.  Bowman,  20  Am.  Dec-.  158,  and  rote, 

Davis,  69  Ind.  452;  Whitehall  v.  Craw-  p.  164;  McDougal  v.  McDougherty,  39 

ford,  67  Ind.  84.  Ala.  409. 

(x)  R.   S.   1881,   §   617;    Barnes    v.  (c)  Richardson    v.    Howk,   45    Ind. 

Dewey,  58  Ind.  418;    Collins  r.  Rose,  451  ;  Leech  v.  Perry,  77  Ind.  422. 


XXn.]  JUDGMENT.  £97 

The  demurrer  admits  that  the  record  is  properly  and  fully  set  out. 
Therefore,  if  the  defendant  believes  it  is  not  properly  set  out,  he  should 
move  the  court  to  compel  the  plaintiff  to  include  in  his  complaint  the 
omitted  part  of  the  record,  showing  the  part  omitted.  This  should  be 
done  before  the  demurrer  is  filed. 

If  the  complaint  is  for  new  matter,  an  issue  of  fact  is  tendered,  and 
an  answer  should  be  filed  as  in  other  cases. d 

In  the  note  to  Brewer  v.  Bowman  will  be  found  a  very  full  and  in- 
teresting review  of  the  decided  cases  and  the  practice  in  bills  of  review. 
It  may  be  regarded  as  the  general  rule  that,  where  the  bill  is  for  error 
of  law,  the  court  must  determine  the  question  presented  from  the  rec- 
ord, without  reference  to  the  evidence  in  the  original  action,  and  with- 
out the  aid  of  evidence  at  the  trial  of  the  action  to  review.  Wjiere 
the  bill  or  complaint  is  for  new  matter,  the  evidence  on  the  former 
trial  may  be  important.  The  facts  alleged  in  the  complaint  for  review 
must  be  supported  by  proof,  and  may  be  controverted  by  the  defend- 
ant. The  defendant  may  also  allege  and  prove  any  facts  going  to 
avoid  the  cause  for  revie  vv  set  out  in  the  complaint. 

The  bill  to  review  for  error  of  law  is  treated  under  the  old  practice 
as  in  the  nature  of  a  writ  of  error,  the  remedy  being  the  same  ;  and 
under  the  code  practice,  a  complaint  for  review  is  in  the  nature  of  an 
appeal,  to  be  tried  by  the  record  alone. 

1052.  The  trial. — If  the  action  to  review  is  for  error  of  law,  there 
can  be  no  trial,  as  there  is  no  question  of  fact  presented  by  the  plead- 
ings, except  where  a  release  of  errors  or  affirmative  matter  in  bar  of 
the  appeal  is  set  up  in  answer.     If  the  complaint  is  for  new  matter,  or 
matter  in  bar  of  the  appeal  is  pleaded,  the  question  of  fact  presented 
by  the  pleadings  should  be  tried  as  in  other  cases.6 

1053.  The  bond. — The  commencement  of  an  action  to  review  does 
not  stay  the  execution  of  the  judgment.     But  the  statute  provides  that 
the  court  may,  on  the  application  of  the  plaintiff,  at  any  time  after  the 
complaint  is  filed,  stay  further  proceedings,  and  that,  when  proceedings 
are  stayed,  the  court  shall  direct  bond  and  security  to  be  given  as  in 
cases  of  appeal/ 

1054.  The  judgment. — Upon  the  hearing,  the  court  may  reverse 

(d)  R.  S.  1881,  §619;   Richardson  v.     158,  and  note,  p.  168;  Buffington  v.  Har- 
Howk,  4o  Ind.  451  ;  citing,  2  Daniell     vey,  95  U.  S.  99,  103. 
Ch.  Pr.,  1643;  2  Smith's  Ch.  1'r.,  63;         (e)  Richardson    v.   Howk,   45    Ind. 
see  also  Brewer  v.  Bowman,  2  Am.  Dec.     451;   Busk.  Prac.,  pp.  273,  274. 

(t )  R.  S.  1881,  §  018. 


698  JUDGMENT.  [CHAP. 

or  affirm  the  judgment  in  whole  or  in  part,  or  modify  the  same  as  the 
justice  of  the  case  may  require,  and  award  costs  according  to  the  rules 
prescribed  for  the  awarding  of  costs  in  the  supreme  court  on  appeal.5 

1055.  When  proceeding  to  review  allowed. — The  proceeding 
to  review,  if  for  error  of  law,  must  be  brought  within  one  year,  and 
if  for  new  matter,  within  three  years ;  or,  for  both  causes,  within  one 
year  after  the  rendition  of  the  judgment.*1 

The  complaint  need  not  aver  that  it  is  brought  within  the  time  lira, 
ited  by  the  statute.  Nor  is  it  bad  if  it  shows  that  it  was  not  filed 
within  the  time.1 

There  can  be  no  proceeding  to  review  a  judgment  for  divorced 

It  is  only  final  judgments  that  can  be  reviewed.  There  can  be  no 
review  of  an  interlocutory  order  that  could  not  be  appealed  from.k 

There  may  be  an  action  to  review  the  settlement  of  a  guardian,  ex- 
ecutor, or  administrator.1 

For  error  of  law,  a  party  may  resort  to  an  appeal  or  an  action  to  re- 
view, but  not  to  both.  Therefore,  if  the  cause  has  been  appealed  to  the 
supreme  court  and  the  judgment  affirmed,  this  is  a  bar  to  a  proceeding 
to  review  for  error  of  law  appearing  on  the  face  of  the  proceeding  and 
judgment. 

Whether  an  appeal  will  bar  a  proceeding  to  review  for  new  matter 
has  been  seriously  questioned,  and  the  authorities  are  not  uniform."1 
In  most  of  the  states,  newly  discovered  evidence  is  cause  for  review. 
We  have  seen  that  this  is  not  true  in  Indiana.  Under  our  prac- 
tice, it  would  seem  to  be  the  better  rule  that  an  affirmance  on 
appeal  will  not  bar  an  action  to  reView  for  material  new  matter. 
This  should  be  so,  as  the  new  matter  relied  upon  could  not  have 
been  involved  in  the  judgment  of  the  supreme  court.  As  to  that 
there  has  been  no  adjudication.  It  is  a  new  cause  of  action  or  defense 
that  Avas  not  involved  in  the  former  trial  in  the  court  below  or  on  ap- 
peal, else  it  is  not  new  matter  within  the  s-tatule.  It  may  have  been 
discovered  after  the  appeal  and  after  the  judgment  of  affirmance. 
There  could  be  no  good  reason  for  holding  that  the  judgment  of  affirm- 
ance is  a  bar  in  such  case.  The  decided  cases  holding  it  to  be  a  bar 

(g)  R.  S.  1881,  ?§  620,  664;   Alsop  v.  (j)  R.  S.  1881,  I  615;    Willman   v. 

Wiley,  17  Ind.  452;  Francis  v.  Davis,  Willman,  57  Ind.  500. 

69    Ind.   452;  Hardy   v.    Kirtland,  34  (k)  Cravens  v.  Chambers,  69  Ind.  84. 

Ind.  365.  (1)  Karney  v.  Valo,  56  Ind.  542. 

(h)  R.S.  1881,  §616;  ante,  vol.  1, §251.  (m)  See  Brewer  v.  Bowman,  20  Am. 

(i)  Whitehall   v.  Crawford,  67  Ind.  Dec.  159,  and  authorities  cited  in  the 

84.  note. 


XXII.]  JUDGMENT.  690 

seem  to  place  it  upon  the  ground  that  the  former  judgment,  when  af- 
firmed, becomes  the  judgment  of  the  appellate  court,  and  that  the  court 
below  has  no  power  but  to  enforce  its  execution.  Whether  this  is  true 
or  not,  the  new  matter  set  up  for  review  has  not  been  adjudicated, 
and  should  not  be  allowed  to  bar  the  proceeding.  But  the  judgment, 
when  affirmed,  can  not  be  regarded  as  the  judgment  of  the  appellate 
court,  PO  far  as  to  preclude  the  court  rendering  it  from  giving  re- 
lief under  this  statute.  It  has  been  held  in  general  terms  that  a 
party  has  two  remedies,  either  to  appeal  or  bring  his  action  to  re- 
view, and  to  adopt  one  of  these  remedies  is  a  waiver  of  the  other.0 
But  none  of  these  cases  for  review  were  on  the  ground  of  material 
new  matter.  They  can  not,  therefore,  be  regarded  as  deciding  the 
point.0 

It  is  held  that,  where  there  has  been  an  action  to  review  and  the 
judgment  affirmed,  it  is  a  bar  to  a  second  action  to  review  as  well  as 
to  an  appeal. p  But  this,  it  seems  to  me,  should  not  be  the  rule  where 
the  first  proceeding  is  for  error  and  the  second  is  for  material  new 
matter. 

An  action  may  be  brought  to  review  an  order  of  court  declaring  a 
person  to  be  of  unsound  mind.  The  action  can  not  be  brought,  how- 
ever, by  him  or  his  guardian.  It  must  be  by  some  other  person  in  his 
own  name  or  by  a  committee. q 

1056.  Effect    of    review. — The   effect   of  the  judgment  in  an 
action  of  review  is  the  same  as  a  judgment  of  the  supreme  court  on 
appeal.1 

Whether  the  judgment  is  affirmed  or  reversed  it  is  a  final  judgment, 
from  which  an  appeal  to  the  supreme  court  may  be  taken.8 
The  judgment  for  costs  should  be  the  same  as  on  appeal.' 
A  judgment  of  reversal  does  not  finally  dispose  of  the  original 
cause." 

VACATING    JUDGMENTS. 

1057.  How  and  for  what  causes. — In  proceedings  to  review,  or 

(n)  The   Indiana   Insurance   Co.   v.  (r)  Maghee   v.  Collins,   27  Ind.  83; 

Koutledge,  7   Ind    25;    Davis   v.  Bin-  Brown   v.  Keyser,  53   Ind.  85;    Busk, 

ford,  70  Ind.  44;  Dunkle  v.  Elston,  71  Prac.,  p.  274. 

Ind.  585.  (s)'  Brown  r.  Keyser,  53  Ind.  85. 

(o)  Story's  Eq.  PI.,  §  418.  (t)  R.  S.  1881,  §  620. 

(p)  Coen  v.  Funk,  26  Ind.  289.  (u)  Leech  r.  Perry,  77  Ind.  422. 

(q)  Meharry   v.    Meharry,   59   Ind. 
257. 


700  JUDGMENT.  [CHAP. 

on  appeal,  the  right  to  relief  grows  out  of  some  error  of  the  court  or 
some  newly-discovered  fact. 

The  effect  of  a  review,  as  we  have  seen,  is  to  vacate  the  judgment 
in  whole  or  in  part.  The  effect  of  a  reversal  in  the  supreme  court  is 
the  same. 

There  are  various  other  ways  by  which  a  judgment  may  be  vacated  as 
the  result  of  some  proceeding  of  the  court  growing  out  of  errors  com- 
mitted or  allowed,  or  because  of  some  legal  disability  existing  on  the  part 
of  the  judgment  defendant.  Thus,  the  granting  of  a  new  trial  va- 
cates the  judgment."  So  of  a  new  trial  granted  as  of  right.v  And 
by  setting  aside  a  default w  or  an  order  relieving  a  party  from  a  judg- 
ment taken  against  him  through  his  mistake  or  excusable  neglect.* 

So  the  statute  authorizes  a  proceeding  to  vacate  judgments  in  cer- 
tain cases  where  the  parties  are  laboring  under  disabilities  ;  as  in  case 
of  infants,  where  judgment  has  been  rendered  against  them,  or  their 
property  has  been  obtained  by  fraud  or  mistake. y  So  where  judg- 
ment has  been  taken  on  constructive  notice.2 

A  judgment  is  vacated,  by  a  second  judgment,  in  an  action  thereon.* 

These,  except  the  last,  are  some  of  the  cases  in  which  a  judgment  is 
vacated  as  the  result  of  some  proceeding  authorized  by  statute.  Where 
the  statutory  remedy  is  resorted  to  the  statute  must  be  complied 
with.b 

Formerly  the  power  to  vacate  judgments  for  fraud  rested  in  courts 
of  equity,  and  a  bill  in  chancery  was  necessary  to  obtain  relief.  It  was 
a  question,  after  the  enactment  of  the  code,  whether  this  equitable 
remedy  still  existed  and  could  be  enforced,  or  whether  the  means 
provided  by  statute  excluded  all  other  modes  of  obtaining  relief. 

It  was  held,  in  some  of  the  earlier  cases,  that  in  order  <.o  obtain  re- 
lief from  a  judgment  the  statute  must  be  followed,  and  that  the  right 
to  set  aside  the  judgment  of  a  superior  court,  by  bill  in  chancery,  for 
fraud,  or  by  complaint  in  the  nature  of  such  a  bill,  was  entirely  super- 
seded by  the  various  provisions  of  the  code  for  the  vacation  of  judg- 
ments.0 

But  in  a  very  late  case  it  is  held  that  the  equitable  right  to  vacsite 
ft  judgment  procured  by  fraud  still  exists,  and  may  be  enforced  by  the 
courts  of  this  state  independent  of  any  statutory  provision.*1 

(u)  Ante,  vol.  I.,  g  946.  (a)  Ante,  §  1033. 

(v)  Ante,  vol.  I.,  §  968.  (b)  Nealis  p.  Dicks,  72  Ind.  374. 

(w)  Ante,  vol.  I.,  §468.  (c)  3IcQuigg   v.   McQuigg,  13   Ind. 

(x)  Ante,  vol.  I.,  \\  460,  402.  407, 468.  294;  Woolley  v.  Woolley,  12  Ind.  663; 

(y)  K.  S.  1881,  §  2453.  Quick  v.  Goodwin,  19  Ind.  438. 

(?A  U.S.  1881,  §600;  ante,  §  994.  (d)  Nealis  v.   Dicks.   72    Ind.   374; 

Vol.  3,  pp.  185,  186.  • 


XXII.]  JUDGMENT.  701 

The  court  say  :  "  That  our  courts  possess  ample  equity  powers,  is  a 
proposition  so  plainly  correct  that  its  bare  statement  excludes  debate. 
Nor  does  the  statute  concerning  the  review  of  judgments  restrict  the 
power  of  the  courts,  to  set  aside  judgments,  to  the  two  grounds  there 
specified.  Courts  must  and  do  possess  other  powers  than  those  ex- 
pressly conferred  by  statute.  The  code  does  not  profess  to  strip  the 
courts  of  the  powers  incident  to  courts  of  equity.  The  framers  of  the 
code  did -not  intend  to  take  from  our  courts  rights  and  authority  long 
asserted  and  exercised.  Courts  of  equity  possess  powers  far  more  im- 
portant, and  infinitely  more  essential,  to  the  complete  administration 
of  justice,  than  any  ever  created  or  conferred*  by  legislative  enactment. 
The  powers  of  courts  of  equity  were  created  and  defined  by  men  of  wis- 
dom, whose  object  was  to  form  a  body  of  primary  rights  and  equitable 
remedies  that  would  enable  the  courts  to  enforce  the  principles  of  nat- 
ural justice.  It  will  not  do  to  hold  that  courts  possess  no  power  to 
annul  judgments  except  upon  the  grounds  and  in  the  mode  expressly 
specified  and  prescribed  by  statute.  If  courts  were  restricted  to  the 
exercise  of  mere  statutory  powers,  they  would  make  but  a  lame  and 
halting  progress  in  the  administration  of  justice. 

"The  statute  concerning  the  review  of  judgments  does  not  mean 
that  judgments  shall  only  be  vacated  upon  the  grounds  therein  desig- 
nated, or  only  in  the  mode  therein  prescribed,  to  the  exclusion  of  all 
other  causes  and  all  other  modes.  Neither  the  letter  nor  the  spirit  of 
the  act  warrants  the  conclusion  that  the  legislature  intended  to  so  nar- 
row the  power  of  courts  of  general  jurisdiction  to  relieve  against 
judgments  as  to  limit  and  confine  them  to  the  causes  and  modes  ex- 
pressly prescribed  by  statute.  Where  the  statute  does  prescribe  the 
causes  for  which  a  judgment  may  be  set  aside,  and  does  provide  a  mode 
of  procedure,  then,  of  course,  the  statute  controls,  and  is  to  be  fol- 
lowed and  obeyed. 

"  The  provisions  of  the  code  do  not,  in  terms,  refer  to  the  vacation 
of  judgments  upon  the  ground  of  fraud.  In  the  article  concerning  the 
review  of  judgments,  two  causes  for  review  are  named  :  1st.  Errors  of 
law;  2d.  The  discovery  of  material  new  matter.  The  fraudulent  act 
of  a  party,  by  which  he  prevents  au  appearance,  can  not  be  justly  said 
to  be  new  matter  within  the  meaning  of  the  code.  It  would  be  an 
abuse  of  terms  to  affirm  that  a  review  of  the  judgment  and  proceed- 
ings was  necessary  in  order  to  get  rid  of  a  judgment  procured  by  su?li 
fraudulent  means,  for  there  is,  in  such  a  case,  nothing  to  review.  It  is 
evident  that  the  article  of  the  code  referred  to  is  intended  to  apply  to 
cases  where  a  re-examination  or  reconsideration  of  the  proceedings  is 
necessary  in  order  to  give  adequate  and  just  relief.  Review  ordinarily 


702  JUDGMENT.  [CHAl1. 

means  to  reconsider,  to  re-examine,  and  it  is  obvious  that  this  is  the 
meaning  attached  to  the  word  by  our  code.  That  this  court  regards 
the  code  as  embracing  only  cases  where  it  is  necessary  to  re-examine 
former  proceedings  is  conclusively  shown  by  the  fact  that  there  is  a  long 
and  unbroken  line  of  cases  holding  that,  where  the  complainant  seeks 
a  review,  he  must  make  the  record  of  the  proceedings  in  the  cause 
sought  to  be  reviewed  a  part  of  the  complaint.  Where,  as  here,  the 
complainant  seeks  relief  from  a  judgment  upon  the  ground  of  fraud  in 
obtaining  it,  there  can  not  be  the  slightest  shade  of  reason  for  requiring 
the  record  to  be  incorporated  into  the  complaint  for  review.  The  question 
in  such  cases  is,  Was  the  prevailing  party  guilty  of  fraud  in  obtaining 
judgment?  This  is  the  only  question,  and  it  would  be  idle  to  assert 
that  in  such  a  case  there  must  be  a  review  of  the  rulings  of  the  court. 
There  is,  of  course,  a  very  great  distinction  between  obtaining  a  judg- 
ment by  fraud  and  cases  where  fraud  constitutes  a  defense.  If  the 
complainants  were  asking  to  be  let  in  to  -defend  upon  the  ground  of 
newly-discovered  matter  showing  fraud,  then,  undoubtedly,  there  must 
be  a  review  of  the  judgment,  but  that  is  not  the  case  here.  To  hold 
that  the  code,  concerning  review  of  judgments,  governs  such  a  case  as 
the  present  would  be  to  deny  the  appellees  all  relief,  because  they  have 
discovered  no  new  matter  since  the  rendition  of  the  judgment.  They 
knew  then,  as  well  as  they  know  now,  the  terms  of  the  agreement  of 
compromise."6 

The  case  of  Quick  v.  Goodwin  is  disapproved.  The  earlier  cases 
cited  above,  in  one  of  which  the  point  was  decided  directly  the  other 
way,  are  not  noticed,  but  they  must  be  regarded  as  overruled. 

An  action  to  vacate  or  annul  a  judgment  differs  materially  from  an 
action  to  review.  The  action  to  review  rests  either  upon  some  error 
appearing  on  the  face  of  the  record  or  new  matter  discovered,  affecting 
the  original  cause  of  action.  A  proceeding  to  vacate  may  be,  and 
usually  is,  based  upon  some  wrongful  act  of  the  opposite  party,  by 
which  he  has  obtained  an  undue  advantage,  resulting  in  a  judgment  in 
his  favor.  It  is  held,  therefore,  that,  although  the  statute  expressly 
excepts  actions  for  divorce  from  its  provisions  authorizing  a  review, 
an  action  may,  nevertheless,  be  maintained  to  annul  or  set  aside  the 
judgment  in  such  cases. f 

The  case  cited  was  one  in  which  the  judgment  was  void  for  the  rea- 
son that  the  court  had  not  obtained  jurisdiction  of  the  person  of  the 

(e)  Nealis  v.  Dicks.  72  Tnd.  374,  376;         (f)  Willman   v.  Willman,    57    Ind. 
Johnson   v.   TJnversaw,   30   Ind.   435;     500;  Vol.  3,  pp.  185,186. 
Stone  v.  Lewman,  28  Ind.  97. 


xxn.]  JUDGMENT.  703 

defendant.  But  the  reasoning  of  the  court  applies  to  other  causes  for 
vacating  judgments. 

To  enable  a  party  to  vacate  a  judgment  for  fraud  some  injury  must 
appear  to  have  resulted  therefrom.  If  the  judgment  is  right  and  no 
agreement  of  compromise  has  been  fraudulently  violated,  there  is  no 
just  ground  for  equitable  relief.8 

If  si  judgment  is  obtained  in  violation  of  an  agreement  of  compro- 
ulse,  by  which  an  appearance  is  prevented,  it  will  be  set  aside.h 

Where  such  an  agreement  has  been  made,  and  a  judgment  taken  in 
iraud  of  its  terms,  it  should  be  set  aside,  although  it  appears  to  be 
right, 

A  justice  of  the  peace  has  no  power  to  vacate  or  set  aside  a  judg- 
ment, whether  rendered  before  him  or  not.' 

Nor  has  the  board  of  county  commissioners.8 

SATISFACTION   OF  JUDGMENTS. 

1058.  By  lapse  of  time. — "  Every  judgment  and  decree  of  any 
court  of  record  of  the  United  States,  or  of  this  or  any  other  state,  shall 
be  deemed  satisfied  after  the  expiration  of  twenty  years." j 

This  section  of  the  statute  is  not  one  of  limitation.11 

The  right  to  sue  on  judgments,  is  limited  by  another  section  of  the 
statute.1 

It  is  said,  in  the  case  of  King  v.  Manville,  that  a  case  may  come 
under  some  of  the  exceptions  enumerated  in  section  293,  and  the  action 
may  not,  therefore,  be  barred,  though  more  than  twenty  years  may 
have  elapsed  after  the  cause  of  action  accrued,  and  still  the  presump- 
tion of  satisfaction  would  arise  under  section  305.™ 

There  is  no  presumption  of  satisfaction  from  the  lapse  of  a  shorter 
time  than  twenty  years." 

1059.  By   payment. — Whether   payment   of   a   judgment  will 
amount  to  a  satisfaction  of  it  depends,  sometimes,  upon  the  question 
of  the  authority  of  the  party  to  whom  it  is  paid  to  receive  payment. 

(g)  Statelar's     Adm'r     v.    Sample's  30;    Rogers   v.  Gwinn,   21    Iowa,   £8; 

Adm'r,  29  Ind.  315.  Dobson  r.  Pearce,  12  N.  Y.  156. 

(h)  Nealis  v.  Dicks,  72  Ind.  374  ;  cit-         (i)  Foist  v.  Coppin,  35  Ind.  471. 
ing,  Molyneux  v.  Huey,  81   N.  C.  106;         (a)  Doctor  r.  Hartraan,  74  Ind.  221, 

Hibbard   v.  Eastman,  47   N.    H.  507;  229. 
Carman  v.  Reynolds,  5  El.  &  B.  301;         (j)  R.  S.  1881,  §  305. 
Phillipson  v.  Earl  of  Egremont,  6  A.        (k)  King  v.  Manville,  23  Ind.  134. 
&  E.  (N.  S.)  587;  Allen  v.  Maclellan,         (1)  II.  S.  1881,  g  293,  sub.  6. 
12  Perm.  St.  328;    Hall  v.  Holmes,  30         (m)  Ante,  vol.  I.,  \  305. 
Md.  558;    Hurlburt   r.  Reed,  5  Mich.         (n)  Dodds  r.  I>(xlds,  57  Ind.  293. 


704  JUDGMENT.  [CHAP. 

A  payment  to  the  sheriff  holding  the  execution  is  a  satisfaction  of 
the  judgment,  although  the  judgment  plaintiff  may  never  receive  the 
money,  and  the  defendant  may  compel  an  entry  of  satisfaction.  k 

The  attorney  of  the  judgment  plaintiff  may  receive  payment  and 
bind  him  so  long  as  his  authority  is  not  revoked,  but  he  has  no  au- 
thority to  accept  less  than  the  full  amount  due,  or  to  receive  any  tiling 
except  money.1 

A  justice  of  the  peace  has  a  right  to  receive  money  due  upon  a 
judgment  rendered  before  him,  and  such  payment  is  a  satisfaction.111 

If  the  judgment  has  been  assigned,  still  a  payment  to  the  judg- 
ment plaintiff  is  sufficient,  before  notice  to  the  defendant  of  the  assign- 
ment.11 

The  clerk  of  the  circuit  court  may  receive  payment  of  a  judgment, 
but  not  in  any  thing  but  legal  tender  money.0 

Prior  to  the  enactment  of  the  present  statute,  in  1875,  a  clerk  had 
no  authority  to  receive  payment  of  a  judgment.1* 

The  effect  of  the  payment  of  a  judgment  depends  also  upon  the  per- 
son who  makes  it.  If  it  is  paid  by  a  surety,  the  judgment  is  not  sat- 
isfied, but  remains  in  force  for  his  benefit.*1 

So  where  the  payment  is  made  by  a  replevin  bail/ 

The  rule  applies  to  a  sheriff  who  has  been  compelled  to  pay  the  judg- 
ment by  neglecting  to  return  an  execution  thereon,  as  required  by  law.8 

So  where  a  payment  is  made  by  a  third  party,  with  the  agreement  that 
the  judgment  shall  be  held  by  him,  or  where  a  party  is  compelled  to  pay 
the  same  to  protect  himself  or  his  property  against  the  judgment,  he  is 
entitled  to  be  subrogated  to  the  rights  of  the  judgment  plaintiff  to  the 
extent  of  such  payment,  and  the  judgment  is  not  satisfied/ 

Payment  of  less  than  is  due.  —  As  a  general  rule,  payment  of  less  than 
is  due  will  not  amount  to  a  satisfaction  of  the  judgment,  although  it 
may  be  accepted  as  such. 

(k)   Beard  v.  Millikan,  68  Ind.  231.  v.  Ross,  44  Ind.  481  ;  Hays  v.  Boyer,  59 

(1)  Jones   v.   Kansom,    3   Ind.   327;  Ind.  341. 

Freeman  on  Jndg.,  §?  462,  463;  K.  S.  (p)  Hays  v.  Boyer,  59  Ind.  341. 

1881,  §968;  McCormiek  v.  The  Walter  (q)  R.  S.  1881,  §  1214;    Manford  v. 

A.  Wood   M.  and  R.  M.  Co..  72   Ind.  Firth,  68   Ind.  83;    Hogshead  v.  Wil- 

518.  Hums,  55  Ind.  145;  Klippel  v.  Shields, 

(m)  Herod  v.  Snyder,  61  Ind.  453.         ^A"^81;. 

0    „„  .          (r)  R.    S.    1881,   §    1214;     Jones    v. 
(n)  Gamble    „.   Cummins,    :      Blkf.     j^^  ?4  Ind        « 


235;  Lewis  v.  Hicklin,  5  Blkf.  196;  R.  (s)   Burhank     v.   Slinkard,   53    Ind. 

S.  1881,  §  604.  493;  but  see  on  this  point.  Freeman  on 

(o)  R.   S.  1881,  §  5850;    Prather   r  Judg-<  2  4G9>  »nd  authorities  cited. 

m,v  '  (t)   Freeman  on  Judg.,§  4«8;  Spray 

The   State   Bank,  3   Ind.  356;    Arms-  „.  Rodrnan)  43  Ind.  225 
wor(l)  v.  Srotten,  29  Tnd.  40.");  Crews 


XXII.]  JUDGMENT.  703 

But  a  payment  of  a  smaller  sum  may  amount  to  a  discharge  of  a 
larger  debt,  where  it  is  made  under  a  valid  agreement  to  that  effect, 
as  where  it  is  agreed  to  be  paid  by  a  third  party,  or  where  it  is  paid  as 
a  composition  for  the  debt,  under  an  arrangement  between  the  debtor 
and  his  creditors.11 

A  judgment  may  be  satisfied  by  the  receipt,  on  the  part  of  the  judg- 
ment plaintiff,  of  something  else  than  money,  if  accepted  in  satisfac- 
tion, although  it  may  be  of  less  value  than  the  amount  due.T 

The  execution  of  a  note  governed  by  the  law-merchant  is  equivalent 
to  a  payment  in  money,  unless  it  appears  not  to  have  been  the  inten- 
tion of  the  parties,  at  the  time,  to  give  it  that  effect.™ 

If  the  note  is  not  payable  in  bank,  it  will  not  amount  to  a  payment 
unless  the  judgment  plaintiff  agrees  to  accept  it  as  such.* 

Where  several  judgments  are  rendered  against  parties  jointly  and 
severally  liable  on  the  same  obligation,  a  payment  of  one  is  a  satisfac- 
tion of  all  of  the  judgments,  except  as  to  costs. y 

Hmo  applied. — A  payment  made  to  a  party  holding  several  judg- 
ments against  the  same  debtor  may  be  applied  by  him  upon  either,  in 
the  absence  of  any  direction  from  the  defendant  or  other  person  mak- 
ing such  payment.2 

1060.  By  levy  of  execution. — The  levy  of  an  execution,  issued 
on  the  judgment,  upon  sufficient  property  to  make  the  debt  is  presumed 
to  amount  to  a  satisfaction.* 

The  levy  is  not  necessarily  a  satisfaction,  but  only  prima  facie  so, 
casting  upon  the  judgment  plaintiff  the  onus  of  showing,  before  he 
can  take  other  proceedings  upon  his  judgment,  that,  from  no  fault  of 
his,  the  levy  has  not  proved  productive  of  a  complete  satisfaction.1" 

The  effect  of  the  levy  is  rather  to  suspend  further  proceedings  on 
the  judgment  until  the  property  levied  upon  is  legally  disposed  of  than 
a  satisfaction  of  it.  If  proper  steps  are  taken  to  realize  the  amount 
due,  by  a  sale  of  the  property,  and,  upon  a  sale  being  made,  it  fails  to 

(u)  Fensler  v.  Prather,  43  Ind.  119;  (z)  Forelander  v.  Hicks,  6  Ind.  448. 

Maxwell  v.  Day,  45   Ind.   509;    ante,  (a)  Barrett  v.  Thompson,  5  Ind.  457 ; 

vol.  I.,  §  597.  Mclntosh  v.  Chew,  1  Blkf.  289 ;  Stow- 

(v)  Jones  v.  Kansom,  3  Ind.  327.  art  v.  Nunemaker.  2  Ind.  47;    Doe  v. 

(w)  Maxwell  v.  Day,  45  Ind.  509;  Dutton,  2  Ind.  309;  McCabe  v'.  Good- 

Krutsinger  v.  Brown,  72  Ind.  466.  wine,  65  Ind.  288. 

(x)  Maxwell  v.  Day,  45  Ind.  509.  (b)  McCabe  v.   Goodwine,   6">   Ind. 

(y)  The  First  National  Bank  of  In-  288,  295;  Freeman  on  Ex..  \  209,  and 

dianapolis  v.  The   Indianapolis    Piano  authorities  cited;    Freeman  on  Judg., 

Mfg.  Co.,  45  Ind.  5.  §  476. 
45 


706  JUDGMENT.  [CHAP. 

sell  for  sufficient  to  pay  the  judgment,  without  the  fault  of  the  plaint- 
iff or  the  officer,  it  does  not  amount  to  a  satisfaction.  But,  if  the 
property  levied  upon  is  of  sufficient  value  to  pay  the  judgment,  and 
fails  to  sell  for  sufficient,  through  the  fault  of  the  judgment  plaintiff  or 
officer,  or  if  the  levy  is  improperly  lost  or  abandoned,  the  levy  is  a  sat- 
isfaction.0 

The  same  must  be  the  result  where,  the  proper  steps  being  taken, 
the  property  fails  to  sell  for  the  want  o'f  bidders. 

A  levy  upon  real  estate  has  the  same  effect  as  a  levy  upon  personal 
property  in  this  respect.d 

A  levy  on  property  not  of  sufficient  value  to  pay  the  judgment  raises 
no  presumption  of  satisfaction.6 

1061.  By  the  sale  of  property. — Where  the  proper  diligence  has 
been  used,  and  a  sale  of  property  levied  upon  has  been  made,  the  sale 
and  payment  of  the  money  is  a  satisfaction  to  the  amount  of  the  money 
received/ 

As  we  have  seen,  the  judgment  plaintiff  may,  by  the  neglect  of  him- 
self or  the  officer,  bind  himself  to  a  satisfaction  of  the  judgment  to 
the  actual  value  of  the  property  levied  upon.8  But  this  is  not  true 
where  the  proper  steps  have  been  taken,  resulting  in  a  sale  of  the 
property. 

Where  a  sale  of  real  estate  is  made  to  the  judgment  plaintiff,  and 
the  sale  is  absolutely  void  on  account  of  an  insufficient  description,  the 
sale  will  not  amount  to  a  satisfaction,  although  a  deed  has  been  made, 
and  the  plaintiff  has  entered  satisfaction  of  the  judgment.11 

So,  where  the  sale  is  afterward  set  aside.1 

A  void  sale,  or  a  sale  of  property  to  which  the  judgment  defendant 
had  no  title,  when  the  judgment  plaintiff  becomes  the  purchaser,  is 
not  a  satisfaction^ 

The  discharge,  with  the  plaintiff's  consent,  of  a  defendant  in  custody 
on  a  capias  ad  satisfaciendum  operates  as  a  discharge  of  the  judgment. k 

(c)  Freeman  on  Ex.,  269.  (h)  Kercheval   v.    Lamar,    68    Ind. 

(d)  IS'eff   v.   Green,    MS.   case    No.  442;  Hughes  v.  Streeter,  24  111.  648. 
8427,  January   6,   1882   (un reported j ;  (i)  Johnson   v.  The   State,   80   Ind. 
Lindley  v.  Kelley,  42  Ind.  294;   Mcln-  2:0. 

tosh  v.  Chew,  1  Blkf.  289.  ( j)  Freeman  on  Ex.,  §  54. 

fe)  Lindley  v.  Kelley,  42  Ind.  294,  (k)  Tatem    v.   Potts,   5    Blkf.   534; 

307.  Prentiss  v.  Hinton,  6  Blkf.  85;  "\Vake- 

(f)  McCormick   v.   The  Walter   A.  man  v.  Jones,  1  Ind.  517;  Freeman  on 
Wood  M.  &  K.  M.  Co.,  72  Ind.  518.  Judg.,  §  476. 

(g)  Ante,  §  1058. 


XXII.]  JUDGMENT.  707 

1062.  Entry  of  payment,  release,  or  satisfaction. — "Every 
indorsement  of  payment,  satisfaction,  or  release,  in  whole  or  in  part, 
upon  the  record  or  margin  thereof  of  any  judgment  or  decree,  or  upon 
any  execution  or  order  of  sale  issued  thereon,  signed  by  the  judgment 
plaintiff  or  his  attorney-in-fact ;  or  by  the  assignee  of  such  judgment 
plaintiff  (whose  assignment  is  upon  or  annexed  to  the  record  of  such 
judgment  or  decree  and  attested  by  the  clerk,  when  attested  by  the 
clerk),  upon  the  record  of  such  judgment  or  decree ;  or  by  the  sheriff 
upon  such  execution    or  order   of  sale,   shall  operate  as  a  satisfac- 
tion or  release  of  such  judgment  or  decree,  or  of  such  part  thereof  so 
indorsed  as  paid,  satisfied,  or  released,  in  favor  of  subsequent  pur- 
chasers or  lienholders  in  good  faith.     And  when  such  satisfaction,  pay- 
ment, or  release  is  entered  by  an  attorney-in-fact,  such  fact  shall  be 
noted  on  the  margin  of  the  record  or  the  execution,  as  the  case  may  be, 
and  such  power  of  attorney  shall  be  recorded  in  the  miscellaneous  rec- 
ords of  the  recorder's  office." l 

This  section  of  the  statute  provides  the  manner  of  indorsing  an  en- 
try of  payment,  release,  or  satisfaction.  It  is  for  the  protection  of  in- 
nocent purchasers  or  others  acting  upon  the  faith  of  such  indorsement. 
Prior  to  the  enactment  of  this  section  in  1881,  there  was  no  provision 
for  entering  satisfaction  of  judgments,  or  statute  providing  what  effect 
should  be  given  to  such  an  entry.  It  was  held,  therefore,  that  an  en- 
try of  satisfaction  of  a  judgment  had  no  more  force  than  a  mere  re- 
ceipt, and  might  be  varied  or  controverted  by  the  judgment  plaintiff 
by  parol  proof. m 

Under  the  present  statute,  the  indorsement  is  constructive  notice, 
and  conclusive  upon  the  judgment  plaintiff,  as  between  him  and  sub- 
sequent purchasers  and  lienholders  in  good  faith." 

Where  an  entry  of  satisfaction  has  been  procured  by  fraud,  or  other- 
wise improperly  entered,  without  the  actual  payment  or  satisfaction  of 
the  judgment,  the  judgment  plaintiff  may,  as  between  him  and  the 
defendant,  maintain  an  action  to  set  aside  the  entry.0 

The  release  of  a  judgment  without  a  satisfaction  is  binding  upon  the 
plaintiff,  if  made  upon  a  valid  consideration,  but  not  otherwise. p 

1063.  Action  to  compel  an  entry  of  satisfaction. — When  the 
defendant  has  paid  the  j  udgment  or  satisfied  the  same  in  any  other  way, 

(1)  E.  S.  1881,  §581.  Stewart  v.  Arinel,  62   Ind.  593;    Me- 

(m)  Stewart  v.  Armel,  62  Ind.  593;  Cormick  v.  The  Walter  A.  Wood  M. 

Lapping  v.  Duffy,  65  Ind.  229.  and  R.  M.  Co.,  72  Ind.  518. 

(n)  EtzlerV  Evans,  61  Ind.  56.  (p)  Wray  v.  Chandler,  64  Ind   140. 
(o)  Reish  v.  Thompson,  55  Ind.  34; 


708  JUDGMENT.  [CHAP. 

he  is  entitled  to  an  entry  of  satisfaction,  and  if  it  is  not  made,  he  may 
maintain  an  action  to  compel  the  judgment  plaintiff  to  make  such  en- 
try.i 

The  statute  provides  that  "  satisfaction  of  a  judgment  or  credits 
thereon  may  be  ordered  for  sufficient  cause  upon  notice  and  motion." r 

The  application  may  be  made  by  motion  and  notice.  The  length  of 
time  for  which  notice  shall  be  given  is  not  provided  by  the  statute. 

The  better  practice,  under  this  section,  is  to  file  a  complaint,  stating 
the  facts,  and  have  a  summons  issued  as  in  other  cases.  While  the 
statute  provides  for  a  motion,  a  complaint  will  take  its  place  and  be 
more  regular.  The  question  to  be  determined  at  the  trial  is  whether 
the  judgment  has  been  satisfied  or  not.  If  it  is  found  to  have  been 
satisfied,  judgment  should  be  so  rendered,  and  the  defendant  in  the 
action  ordered  to  enter  satisfaction,  or,  upon  his  failure,  that  the  proper 
entry  be  made  by  the  clerk,  or  some  other  person  to  be  named  in  the 
judgment. 

If  it  is  shown  to  have  been  partially  satisfied,  judgment  should  be 
entered  accordingly.9 

Payments  made  since  the  rendition  of  the  judgment  may  be  shown, 
but  not  such  as  were  made  prior  thereto  on  the  cause  of  action.  Such 
payment  should  have  been  set  up  as  a  defense  to  the  action. 

REVIVOR  OF  JUDGMENTS. 

1064.  Leave  to  issue  execution  after  ten  years. — "  After 
the  lapse  of  ten  years  from  the  entry  of  judgment  or  issuing  of  an  ex- 
ecution, an  execution  can  be  issued  only  on  leave  of  court,  upon  mo- 
tion, after  ten  days'  personal  notice  to  the  adverse  party,  unless  he  be 
absent,  or  non-resident,  Or  can  not  be  found,  when  service  of  notice 
may  be  made  by  publication,  as  in  an  original  action,  or  in  such  man- 
ner as  the  court  shall  direct.  Such  leave  shall  not  be  given  unless  it 
be  established  by  the  oath  of  the  party,  or  other  satisfactory  proof 
that  the  judgment,  or  some  part  thereof,  remains  unsatisfied  and 
due."  u 

It  has  been  held  that,  under  this  section,  no  pleadings  are  contem- 
plated ;  that  the  statute  provides  for  a  mere  motion  to  be  heard  in  a 
summary  way.v 

The  correctness  of  this  ruljng  was  doubted  in  a  later  decision,  in 
which  the  court  say  : 

(q)  Blizzard  v.  Bross,  56  Ind.  74.  (u)  R.  S.  1881,  §  675. 

(r)  K.  S.  1881,  §580.  (v)  Plough  v.  Keeves,  33  Ind.  181; 

(s)  Igleharfs  PI.  &  Pr.,  p.  287,  §  6.  Plough  v.  Williams,  33  Ind.  182. 
(t)  Keeves  v.  Plough,  41  Ind.  204. 


XXII.]  JUDGMEJTT.  709 

"  We  construe  the  statute  to  mean  that  the  judgment  defendant,  in 
answer  to  the  notice  and  motion,  may  appear  aud  plead  payment  or 
satisfaction  of  the  judgment ;  but,  whether  he  appear  or  not,  no  execu- 
tion cuu  issue,  unless  it  be  established  by  the  oath  of  the  judgment 
plaintiff,  or  other  satisfactory  proof  that  the  judgment,  or  some  part 
thereof,  remains  unpaid.  If  the  defendant  in  the  judgment  could  not 
plead  and  prove  payment  of  the  judgment,  there  would  belittle  use 
in  giving  him  notice  of  the  motion.  In  Plough  v.  Reeves,  33  Ind.  181, 
the  court  said,  in  a  similar  proceeding  between  these  parties:  'No- 
pleadings  are  contemplated  or  required  in  a  proceeding  of  this  kind. 
It  is  a  simple  motion,  ta  be  heard  by  the  court,  in  a  summary  way; 
the  only  question  being  whether  the  judgment  or  any  part  thereof  re- 
mains unsatisfied  and  due.'  We  doubt  the  correctness  of  this  ruling. 
But  we  need  not  overrule  the  case  to  sustain  the  second  paragraph  of 
the  answer  in  the  case  at  bar."w 

But  in  a  still  later  case  the  former  of  these  decisions  is  cited,  without 
comment,  to  the  point  that  the  defendant  can  not  plead. x 

Much  confusion  has  grown  out  of  these  statutory  provisions  author- 
izing a  party  to  seek  relief  by  "  motion  and  notice."  There  is  no  good 
reason  why  such  proceedings  should  not  be  commenced,  in  all  cases 
where  a  question  of  fact  is  presented,  by  a  complaint  in  regular  form, 
and  summons  issued  thereon  as  the  notice.  This  statute,  as  intimated 
by  the  supreme  court,  and  others  of  a  like  kind,  should  be  so  con- 
strued as  to  authorize  a  complaint  and  a  regular  course  of  pleading. 

Where  replevin  bail  has  been  entered,  the  judgment  defendant  is  a 
necessary  party  to  the  action,  although  he  may  be  insolvent.y 

If  the  judgment  has  been  assigned  in  the  manner  required  by  the 
statute,  the  assignee  may  maintain  the  action  without  joining  the  as- 
signor, but  if  the  assignment  is  such  as  to  pass  only  an  equitable  title 
to  the  judgment,  the  assignor  must  be  made  a  defendant.55 

As  the  presumption  of  payment  arises  after  twenty  years,  the  ac- 
tion to  revive  must  be  brought  within  that  time,  or  it  is  barred.a 

As  the  right  to  bring  the  action  does  not  arise  until  ten  years  have 
run,  the  effect  of  this  is  to  limit  the  bringing  of  the  action  to  ten  years. 
It  is  said,  in  the  syllabus  to  a  later  case,  that,  in  a  decree  for  the  fore- 
closure of  a  mortgage,  the  action  to  revive  may  be  brought  within 
twenty  years  from  its  date.b 

(w)  Keeves  r.  Plough,  46  Ind.  350.  (z)  Starner  v.  Underwood,  54  Ind. 

(x)  The  Evansville  Gas  Light  Co.  v.  48;  R.  S.  1881,  §  603. 

The  State,  73  Ind.  219.  (a)  Strong  v.  The  State,  57  Ind.  428. 

(y)  StnrntT  v.  Underwood,  54  Ind.  (b)  The  Evansville  Gas  Light  Co.  v. 

48.  The  State,  73  Ind.  219. 


710  JUDGMENT.  [CHAP. 

There  is  no  difference  between  a  decree  of  foreclosure  and  an  ordi- 
nary judgment  in  this  respect.  The  difference  is  that  the  lien  of  such 
a  decree  continues  for  twenty  years,  while  the  lien  of  an  ordinary 
personal  judgment  only  continues  ten  years.  Therefore,  as  between 
the  judgment  plaintiff  and  purchasers  or  iucumbrancers  in  good  faith, 
the  revival  of  a  personal  judgment  will  not  affect  their  rights,  after 
ten  years,  while  in  case  of  a  decree  of  foreclosure,  they  take  subject  to 
the  lien  for  twenty  years.  The  right  to  revive  exists  the  same  in  each 
case,  but  the  effect  may  be  different  as  against  third  parties.  The  case 
of  the  Evansville  Gas  Light  Co.  v.  The  State  decides  no  more  than 
this. 

The  revival  after  the  lien  has  expired  does  not  revive  the  old  lien. 
The  judgment  is  only  a  lien  from  the  time  it  is  revived.0 

On  the  trial  the  plaintiff  must  show  : 

1.  The  recovery  of  a  valid  judgment. 

.  2.  That  ten  years  have  elapsed  since  its  rendition  or  the  issuing  of 
execution. 

3.  That  there  is  some  amount  due  thereon  and  unpaid. 

1065.  By  or  against  executors  and  administrators  un- 
necessary.— Under  the  common-law  practice  no  execution  could 
issue  in  favor  of  the  executor  or  administrator  of  the  judgment 
plaintiff  without  reviving  the  judgment  by  scire  fadas.d 

The  present  statute  makes  it  unnecessary  that  the  judgment  should 
be  revived.6 

The  cases  cited  hold  that  although  a  revival  in  such  cases  is 
unnecessary,  that  the  common-law  right  to  have  the  judgment  revived 
is  not  taken  away  by  the  statute  and  the  proceeding  may  be  maintained. 

Where  the  judgment  is  personal  an  execution  can  not  issue  after  the 
death  of  the  judgment  defendant.  It  is  otherwise  where  the  judg- 
ment is  in  rem  and  can  only  be  executed  in  a  particular  manner  pro- 
vided by  the  judgment.  The  distinction  is  thus  stated :  "  There 
seems  to  be  a  distinction  as  to  the  effect  of  the  death  of  a  sole  defend- 
ant after  judgment  and  before  execution,  between  judgments  in  per- 
sonam,  -which  can  not  be  executed  except  by  a  writ  that  authorizes  the 
officer  to  levy  upon  any  property  of  the  defendant  subject  to  execu- 
tion, and  judgments  in  rem,  which  require  no  writ  of  execution,  and 
can  not  be  executed  except  in  the  particular  manner  decreed.  In  the 

(c).Applegate  v.  Edwards,  45  Ind.  (e)  R.  S.  1881,  ?  2294;  TVynnt  v. 

329,  337.  TVyant,  38  Ind.  48;  Aimstrong  r.  Mo- 

i;l)  AValker  v.  Hood,  5  Blkf.  266;  Laughlin,  49  Ind.  370;  Mavity  n 

Sh.iup  v.  Con  well,  2  Ind.  497.  Eastrideje,  67  Ind.  211. 


XXH.]  JUDGMENT.  71 J 

former  class  ot  cases,  a  writ  of  execution  issued  after  the  death  of  a 
sole  defendant  is  void ;  in  the  latter  class  of  cases,  where  the  decree  is 
its  own  authority  for  execution,  and  where  nothing  can  be  done  ex- 
cept what  was  adjudicated  in  the  lifetime  of  the  parties,  it  may  be  ex- 
ecuted after  the  death  of  a  sole  defendant." f 

1066.  Revivor  upon  death  of  judgment  defendant. — "In 
case  of  the  death  of  any  judgment  debtor  the  heirs,  devisees,  or  legatees 
of  such  debtor,  or  the  tenant  of  real  property  owned  by  him  and 
affected  by  the  judgment,  and  the  personal  representatives  of  the  de- 
cedent, may,  after  the  expiration  of  one  year  from  the  time  of  grant- 
ing letters  testamentary,  or  of  administration  upon  the  estate  of  the 
decedent,  be  summoned  to  show  cause  why  the  judgment  should  not 
be  enforced  against  the  estate  of  the  judgment  debtor  in  their  hands 
respectively.  "g 

This  section  only  applies  to  personal  judgments.  If  the  action  is 
in  rem,  and  the  judgment  orders  the  sale  of  specific  property  no  revivor 
is  necessary. b 

If  the  judgment  is  in  rem,  with  a  personal  judgment  over,  the  per 
sonal  judgment  may  be  revived. 

The  "  tenant  of  real  property,"  named  in  the  statute,  means  a  per- 
son holding  by  a  lease  as  tenant,  and  does  not  include  the  widow.  Her 
rights  can  not  be  affected  by  the  judgment,  therefore  she  is  not  a 
necessary  party  in  an  action  to  revive  under  this  section. ' 

If  the  widow  was  married  to  the  judgment  defendant  after  the 
judgment  lien  attached  she  has  no  interest  in  the  real  estate  as  against 
the  judgment.J 

The  statute  requires  that  the  judgment  creditor,  his  representative 
or  attorney,  shall  file  an  affidavit  that  the  judgment  has  not  been  satis- 
fied to  his  knowledge  or  information  and  belief,  and  shall  specify  the 
amount  due  thereon  and  the  property  sought  to  be  charged.k 

Summons  must  issue  and  issues  be  formed  as  in  other  cases,  and  if 
there  is  a  finding  against  the  defendants  the  judgment  shall  order  the 
sale  of  the  property  sought  to  be  charged,  or  so  much  as  may  be  neces- 
sary to  pay  the  amount  found  due,  and  costs,  as  required  by  the  former 
judgment.1 

(f)  Kellogg   v.   Tout,  65   Ind.  146,         (i)  Hill  v.  Button,  47  Ind.  692. 
151;    The  State   v.  Michaels,  8   Blkf.         (j)  Armstrong   v.    ilcLaughlin,   49 
436;  Louden  v.  Day,  6  Ind.  7.  Ind.  370. 

(g)  R.  S.  1881,  §  621.  (k)  R.  S.  1881,  §  622. 
(h)  Kellogg  v.  Tout,  65   Ind.   146;         (1)  R.  S.  1881,  §  623. 

Hays  v.  Thomae,  5G  N.  Y.  521 ;  ante, 
§  1063. 


712  JUDGMENT.  [CHAP. 

The  statute  formerly  required  that  notice  of  the  application  should 
describe  the  judgment."1  But  the  section  has  been  amended. 

While  no  judgment  can  be  rendered  against  the  personal  representa- 
tive, the  statute  makes  him  a  necessary  party  in  all  cases.  The  action 
maybe  brought  against  the  other  parties  named  "and  the  personal 
representative."  This  should  be  so,  as  only  personal  judgments  can  be 
revived,  and  as  to  such  judgments  the  executor  or  administrator  repre- 
sents the  estate,  and  it  is  his  duty  to  pay  the  same  out  of  assets  first 
liable  for  the  payment  of  debts. 

It  is  evident,  also,  that  the  action  can  not  be  maintained  until  letters 
of  administration  have  been  taken  out,  as  it  can  not  be  brought  until 
"after  the  expiration  of  one  year  from  the  time  of  granting  letters 
testamentary  or  of  administration."  The  action  must  be  brought 
against  the  personal  representative,  and  the  year  usually  allowed  for 
the  settlement  of  the  estate  is  given  before  the  property  in  the  hands 
of  the  heir  or  legatee  can  be  made  liable. 

It  is  not  necessary  that  all  of  the  heirs  should  be  made  parties  in  all 
cases.  If  the  real  estate  is  devised,  the  devisee  only  is  a  necessary 
party,  together  with  the  personal  representative. 

Where  the  real  estate  is  in  the  possession  of  a  tenant,  he  should  be 
joined  with  the  owner. 

Where  the  land  has  passed  into  the  hands  of  third  parties  subsequent 
to  the  death  of  the  decedent,  they  should  be  made  parties  to  bind  their 
interests. 

1067.  Defenses  in  actions  to  revive. — To  entitle  the  plaintiff 
to  recover,  it  must  appear  that  the  judgment  is  valid  and  one  that  can 
be  revived.  The  code  of  1852  provided,  specifically,  that,  the  defendant 
might  answer,  denying  the  judgment  or  setting  up  any  defense  which 
had  arisen  subsequently." 

The  present  statute  contains  no  such  direct  provision,  but  these  de- 
fenses may  still  be  made. 

The  defendant  can  not  go  back  of  the  judgment  and  assert  a  defense 
that  might  have  been  made  to  the  original  cause  of  action.0 

Nor  can  the  judgment  be  attacked  for  error. 

But  it  may  be  shown  in  defense  that  the  judgment  is  void  for  want 
of  jurisdiction  or  other  cause. p 

It  is  competent  for  the  defendant  to  prove  the  satisfaction  of  the 

(m)  2  R.  S.  1876,  p.  265,  §  644.  (p)  Ante,  §§  1038,  1057,  and  authori- 

(n)  2  R.  S.  1876,  p.  266,  §  645.  ties  cited, 

(o)  Kiser  v.  Winans,  20   Ind.  428; 
Reeves  v.  Plough,  41  Ind.  204. 


XXH.]  JUDGMENT.  713' 

judgment  in  whole  or  in  part,  either  by  payment  or  in  any  other  man- 
ner.'1 

The  real  question  to  be  determined  is,  whether,  admitting  the  judg- 
ment to  be  valid,  there  is  any  amount  due  thereon  and  unpaid.  The 
burden  of  proving  that  there  is  an  amount  due  is  with  the  plaintiff, 
but  when  a  valid  judgment  is  shown,  it  will  prove  the  amount  due  by 
calculation.  This  is  enough  to  sustain  the  plaintiff's  cause  of  action, 
and  if  there  has  been  any  payment  made,  or  other  matter  amounting 
to  a  satisfaction  or  release,  the  proof  of  this  must  come  from  the  de- 
fendant. Where  the  action  is  against  the  heirs,  devisees,  legatees,  01 
tenant,  and  the  personal  representatives,  under  section  621,  the  object 
is  to  reach  specific  property  devised  or  descended  to  the  defendants. 
In  such  case  it  must  be  shown  by  the  plaintiff  that  the  judgment  de- 
fendant owned  the  property  described  in  the  affidavit,  that  it  was  af- 
fected by  the  judgment,  and  that  the  defendants  who  are  charged  as 
heirs,  devisees,  or  legatees,  are  now  the  owners.  Where  the  action  is 
against  the  tenant,  he  must  be  shown  to  be  in  possession  as  tenant. 
The  judgment  to  be  revived  being  a  personal  one,  the  personal  repre- 
sentative is  a  necessary  party,  but  no  judgment  can  be  rendered 
against  him.  The  only  judgment  that  is  authorized  by  the  statute  is 
for  the  sale  of  the  specific  property  described  in  the  plaintiff's  affi- 
davit/ 

ACTIONS   ON  JUDGMENTS. 

1068.  Are  debts  of  record,  and  may  be  collected  by  suit. 
— It  is  now  well  settled  by  authority  that  a  judgment  is  a  debt  of  rec- 
ord that  may  be  made  the  foundation  of  an  action,  although  it  is  in 
full  force  as  an  existing  lien,  and  execution  might  be  issued  thereon.8 

The  suit  may  be  brought  in  the  court  in  which  the  judgment  was 
rendered,  or  in  any  other  court  of  competent  jurisdiction.1 

A  judgment  for  costs  may  be  sued  upon  as  other  judgments.11 

A  judgment  in  rem  can  not  be  made  the  subject  of  an  action.  There 
must  be  a  personal  judgment  rendered  on  actual  service  of  process,  or 
an  appearance  to  the  action. v 

In  pleading  the  judgment,  a  copy  need  not  be1  made  part  of  the 
complaint. w 

(q)  Reeves  v.  Plough,  46  Ind.  350.  (u)  Palmer  v.  Glover,  73  Ind.  529. 

•  (r)  Hill  v.  Sutton,  47  Ind.  592.  (v)  Henrie  v.  Sweasey,  5  Blkf.  335; 

(s)  Davidson   v.  Nebaker,   21    Ind.  Roose  v.  McDonald,  23  Ind.  157 ;  Lip- 

334;    Gould   v.  Hayden,  63  Ind.  443;  perd  v.  Edwards,  39  Ind.  165. 

Palmer  v.  Glover,  73  Ind.  529;  Ward  (w)  Lytler.  Lytle,  37  Ind.  281;  ante, 

v.  Haggard,  75  Ind.  381.  vol.  I.,  §  417,  and  cases  cited. 

(t)  Gould  v.   Hwyden,  G3  Ind.  44^; 
Hansford  v.  Van  Anken,  79  Ind.  157. 


714  JUDGMENT.  [CHAP. 

But  the  allegations  of  the  complaint  must  show  the  recovery  of  a 
judgment  against  the  defendant.1 

It  is  not  necessary  to  allege  that  the  judgment  is  still  in  force.  If 
it  has  been  reversed,  set  aside,  vacated,  or  satisfied  these  are  matters  of 
defense. y 

The  right  to  sue  upon  a  judgment  extends  to  judgments  rendered  in 
another  state. z 

And  to  judgments  of  justices  of  the  peace,  whether  of  this  or  an* 
other  state." 

The  fact  that  execution  can  not  issue  for  ten  days  on  a  judgment 
taken  by  default,  before  a  justice  of -the  peace,  does  not  prevent  an 
action  being  brought  thereon  within  that  time.b 

In  suing  upon  a  judgment  of  a  court  of  special  jurisdiction,  the 
complaint  must  show,  by  proper  averments,  that  the  court  had  juris- 
diction of  the  subject-matter  and  of  the  person.  This  may  be  done 
by  stating  the  facts  showing  jurisdiction,  or  by  using  the  language 
of  the  statute,  that  "  the  judgment  was  duly  given,"  which  is  held  to  be 
sufficient.0 

The  statute  dispensing  with  an  allegation  of  the  facts  showing  juris- 
diction applies  to  foreign  judgments.*1 

The  jurisdiction  of  a  court  of  general  or  superior  jurisdiction  over 
the  subject-matter,  or  of  the  person  will  be  presumed  in  the  absence 
of  a  showing  to  the  contrary.6 

1069.  Defenses. — The  defendant  may  defend  against  the  judg- 
ment on  the  ground  of  want  of  jurisdiction  of  the  subject-matter  of 
the  former  action,  or  of  the  person/ 

Or  that  it  is  void  for  other  reasons.8 

(x)  Lipperd    v.    Edwards,   39    Ind.  (c)  R.  S.  1881,  §369;  ante,  vol.1., 

165.  §  398,  and  cases  cited. 

(y)  Campbell     v.     Cross,     39     Ind.  (d)   Ante,   vol.  I.,   §  398;    Crake   v. 

155  ;  post,  §  1069.  Crake,  18  Ind.  156. 

(z)  Cole  v.  Driskell,  1  Blkf.  16 ;  Cone.  (e)  Lytle  v.  Lytle,  37  Ind.  281 ;  ante, 

v.  Cotten,  2  Blkf.  82;  Davis  v.  Lane,  2  vol.  I.,  §  5;  The  State  v.  Ennis,  74  Ind. 

Ind.  548;  Wiley  v.  Strickland,  8  Ind.  17. 

453;  Snyder  v.  Snyder,  25  Ind.  399.  (f)  Holt   v.   Alloway,    2  Blkf.  108; 

(a)  Travel  v.  Springfield  Township,  Davis  v.  Lane,  2  Ind.  548. 

La  Porte  Co.,    34   Ind.  296;    Cole   v.  (g)  Collins  v.  Fraiser,   27  Ind.  477; 

Driskell,  1  Blkf.  16.     .  Kenedy  v.   The    State,   53  Ind.  54'2 ; 

(b)  Fravel  v.  Springfield  Township,  Evans  v.  The  State.  56  Ind.  459;  The 
La  Porte  Co.,  34  Ind.  296.  State  v.  Forrey,  64  Ind.  260. 


XXII.]  JUDGMENT.  715 

If  the  objection  appears  upon  the  face  of  the  complaint,  it  may  be 
taken  by  demurrer. h 

Otherwise  it  must  be  presented  by  answer.' 

The  judgment  of  a  court  may  be  defended  against  on  the  ground 
that  it  Avas  obtained  by  fraud.J 

The  same  fraud  that  would  entitle  the  defendant  to  vacate  the  judg- 
ment will  furnish  him  a  defense  in  an  action  thereon. k 

The  merits  of  the  original  cause  of  action,  or  the  right  of  the  plaint- 
iff to  recover  judgment,  admitting  that  the  court  had  jurisdiction,  and 
that  it  was  not  obtained  by  fraud,  can  not  be  inquired  into.  If  the 
judgment  is  valid,  it  is  conclusive.1 

A.  want  or  failure  of  consideration  is  no  defense.™ 

It  may  be  shown  that  since  the  judgment  was  rendered  it  has  been 
satisfied,  released,  vacated,  or  reversed.0 

The  right  of  a  party  to  show  that  the  attorney  who  appeared  for 
him  was  unauthorized  has  been  fully  considered  in  another  part  «f  this 
work.0 

(h)  Cone  v.  Cotton,  2  Blkf.  82  ;  Wil-  v.  Lane,  2  Ind.  548;  Brown  v.  Trulock, 
ley  v.  Strickland,  8  Ind.  '453 ;  Snyder  4  Blkf.  429 ;  ante,  §  1038,  and  authori- 
ty Snyder,  25  Ind.  399.  ties  cited. 

(i)  Willey  v.  Strickland,  8  Ind.  453.  (m)  Brown  v.  Trulock,  4  Blkf.  429. 

(j)  Holt  v.  Alloway,  2  Blkf.  108;  (n)  Fravel  v.  Springfield  Tp.,  La 

Brown  v.  Trulock,  4  Blkf.  429.  Porte  Co.,  34  Ind.  296. 

(k)  Freeman  on  Judg.,  §  435;  ante,  (o)  Ante,  vol.  I.,  §g  227,  228,  and  au- 

§  1057 ;  Nealis  v.  Dicks,  72  Ind.  374.  thorities  cited. 

(1)  Freeman  on  Judg.,  $  435;  Davis 


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2  vols.  8vo.  Cloth.  •  4  oo 

MORGAN.  An  English  Version  of  Maxims,  with  the  Original  Forms,  alpha- 
betically arranged,  and  an  Index  of  Subjects.  By  J.  Appleton  Morgan. 
Second  edition.  I2mo.  Cloth.  '  •  2  oo 

NASH.  Pleading  and  Practice  under  the  Codes  of  Ohio,  New  York,  Kansas, 
and  Nebraska.  By  Hon.  J.  Nash.  Fourth  edition.  2  vols.  8vo.  10  oo 

OHIO  DIGEST.  Digest  of  the  Decisions  in  all  Ohio  Courts  to  1882.  By  J. 
B.  Walker  and  C.  Bates.  3  vols.  Royal  8vo.  Net.  17  oo 

Vol.  3,  1874-82.     By  C.  Bates.     Royal  8vo      Separately.     Net.  5  oo 

OHIO  and  Ohio  State  Report,  Reports  of  Cases  decided  in  '  the  Supreme 
Court  of  Ohio.  1821-1890.  66  vols.  Net.  13200 

OHIO  REVISED  STATUTES.  New  edition,  thoroughly  revised  to  embrace 
all  Laws  in  force  January,  1890.  By  Florien  Giauque.  2  vols.  Royal  8vo. 
Net.  $12.00.  Or,  3  vols.  Net. 

OHIO  STATUTES  at  Large.     Embracing: 

Curwen's  Statutes  at  Large,  1833-1860.    4  vols.    8vo.    Net. 
Sayler's  Statutes  at  Large,  1860-1875.    4  vols.    8vo. 

PECK.     The  Law  of  Municipal  Corporations  in  the  State  of  Ohio.    Bj 
H.  D.  Peck,  late  City  Solicitor  and  Judge  of  the  Superior  Court  of  Cir 
Second  edition.     8vo.     Net. 


Law  Treatises  and  Reports.  5 

PECK.  The  Township  Officer's  Guide  of  Ohio.  By  Hon.  H.  D.  Peck. 
Sixth  edition,  1889.  Net.  Cloth,  $2.00;  sheep,  2  oo 

POLLOCK.  Principles  of  Contract  at  Law  and  in  Equity.  Being  a  Treatise 
on  the  General  Principles  Concerning  the  Validity  of  Agreements,  with  a 
Special  View  to  the  Comparison  of  Law  and  Equity.  By  Frederick  Pollack, 
LL.D.  .Edited  by  G.  H.  Wald.  Second  edition.  8vo.  Net.  600 

RAFF.  Guide  to  Executors  and  Administrators  in  the  State  of  Ohio.  Sixth 
edition.  By  Hon.  G.  W.  Raff.  Edited  and  Enlarged  by  F.  Giauque.  I2mo. 
Cloth,  $2.00;  sheep,  2  50 

REINHARD.  The  Criminal  Laws  of  the  State  of  Indiana,  with  Precedents, 
Forms  for  Writs,  Docket  Entries,  etc.  By  G.  L.  Reinhard.  8vo.  2  50 

RITCHIE.  Manual  for  Municipal  Officers.  Having  Special  Reference  to 
the  Duties  and  Powers  of  Mayors,  Marshals,  Councilmen,  Clerks,  and  Treas- 
urers in  Ohio,  and  containing  Forms  for  all  the  usual  business  incident  to  these 
Offices.  By  Edwards  Ritchie.  I2mo.  Leatherette.  Net.  I  50 

ROSENTHAL.  Manual  for  Building  and  Loan  Associations.  Embracing 
the  Origin  and  History  of  Co-operative  Societies ;  Objects  and  Benefits  of 
Building  Associations ;  Plans  and  Methods  of  Organizing  and  Conducting 
them ;  Legislation ;  Constitution  and  By-laws ;  Form's  and  Descriptions  of 
Books,  Blanks,  and  Papers ;  Interest  and  Dividend  Tables ;  and  a  Compre- 
hensive Variety  of  Practical  and  Useful  Information  and  Suggestions.  By 
Henry  T.  Rosenthal.  I2mo.  Cloth.  I  50 

SAINT  GERMAIN.  The  Doctor  and  Student;  or,  Dialogues  between  a 
Doctor  of  Divinity  and  a  Student  in  the  Laws  of  England,  containing  the 
grounds  of  those  Laws.  By  Christopher  St.  Germain.  Revised  and  corrected 
by  Wm.  Muchall.  8vo.  Cloth.  2  oo 

SAUNDERS.  A  Treatise  upon  the  Law  of  Negligence.  By  T.  W.  Saunders. 
'With  Notes  of  American  Cases.  8vo.  2  50 

SAYLER.  American  Form  Book.  A  Collection  of  Legal  and  Business  Forms 
for  Professional  and  Business  Men.  By  John  R.  Sayler.  Second  edition.  Re- 
vised, 1886.  8vo.  Cloth.  Net.  2  oo 

STANTON.  A  New  Digest  of  the  Kentucky  Decisions ;  embracing  all  Cases 
decided  by  the  Appellate  Courts  from  1875  to  l%77-  By  Hon.  R.  H.  Stanton. 
Second  edition.  2  vols.  8vo.  Net.  6  oo 

STANTON.  A  Practical  Treatise  of  the  Law  relating  to  Justices  of  the 
Peace,  etc.,  in  Kentucky.  By  Hon.  R.  H.  Stanton.  Third  edition.  8vo.  ^  50 

STANTON.  Manual  for  the  use  of  Executors,  Administrators,  Guardians,  etc., 
in  Kentucky.  By  Hon.  R.  H.  Stanton.  Second  edition.  I2mo,  I  75 

SWAN.  Treatise  on  the  Law  relating  to  the  Powers  and  Duties  of  Justices  of 
the  Peace,  etc.,  in  the  State  of  Ohio.  By  Hon.  Joseph  R,  Swan.  Thirteenth 
edition.  8vo.  Net,  6  oo 

SWAN.     Pleadings    and    Precedents    under  the   Code   of  Ohio.     By  Hon, 
Ji  R.  Swan.    8vo  6  OO 


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t>  Robert  Clarke-  &  Co.,   Cincinnati. 

SWAN  and  PLUMB.  Treatise  on  the  Law  relating  to  the  Powers  and  Duties 
of  Justices,  etc.,  in  Kansas.  By  Hon.  Joseph  R.  Swan  and  Hon.  Preston  B. 
Plumb.  8vo.  4  oo 

WARREN.  Criminal  Law  and  Forms,  By  M.  Warren.  Third  edition. 
8vo.  5  oo 

"WELCH.  Ohio  Index-Digest  of  all  the  Cases  decided  in  the  Courts  of  Ohio. 
(Contained  in  105  vols.)  By  Hon.  John  Welch,  late  Judge  Supreme  Court 
of  Ohio.  8vo.  1887.  Net.  6  oo 

WELLS.  Treatise  on  the  Separate  Property  of  Married  Women,  under  the 
recent  Enabling  Acts.  By  J.  C.  Wells.  Second  edition.  8vo.  6  oo 

WELLS.  A  Manual  of  the  Laws  relating  to  County  Commissioners  in  the 
State  of  Ohio,  with  carefully  prepared  Forms  and  References  to  the  Decisions 
of  the  Supreme  Court.  By  J.  C.  Wells.  Net.  3  50 

WILD.  Journal  Entries  under  the  Code  of  Civil  and  Criminal  Procedure. 
With  Notes  of  Decisions.  By  E.  N.  Wild.  Third  edition.,  8vo.  4  oo 

WILCOX.  The  General  Railroad  Laws  of  the  State  of  Ohio,  in  force  January, 
1874.  By  J.  C.  Wilcox.  8vo.  5  oo 

WILSON.  The  New  Criminal  Code  of  Ohio.  With  Forms  and  Precedents, 
Digest  of  Decisions,  etc.  By  Hon.  M.  F.  Wilson.  Third  edition,  8vo. 
Net.  5  oo 

"WORKS.  Indiana  Practice,  Pleadings,  and  Forms.  By  Hone  J.  D.  Works. 
Second  edition.  3  vols.  8vo.  1887.  Net.  18  oo 

WORKS.  Removal  of  Causes  from  State  Courts  to  Federal  Courts,  embracing 
the  Act  of  Congress  passed  March  3,  1887,  with  Forms  and  References  to  De- 
cisions. By  Hon.  J.  D.  Works.  8vo.  I  oo 

WRIGHT.  Reports  of  Cases  at  Law  and  in  Chancery,  decided  in  the  Courts 
of  Ohio  during  the  years  1831-1834.  New  edition,  with  Notes.  By  Hon.  J. 
C.  Wright,  late  Judge  Supreme  Court  of  Ohio.  8vo.  Net.  5  oo 

YAPLE.  Code  Practice  and  Precedents.  Embracing  all  Actions  and  Special 
Proceedings  under  the  Civil  Code  of  Ohio,  and  applicable  to  the  Practice  in 
all  the  Code  States  having  a  Similar  Code  System.  By  Hon.  Alfred  Yaple, 
late  Judge  Superior  Court  of  Cincinnati.  2  vols.  8vo«  1887.  Net  12  oo 


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